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FAMILY LAW ACT 1975 - SECT 44

Institution of proceedings

             (1)  Except as otherwise prescribed by the regulations or by the applicable Rules of Court, proceedings under this Act shall be instituted by application.

          (1A)  Proceedings under this Act for:

                     (a)  a divorce order in relation to a marriage; or

                     (b)  a decree of nullity of marriage;

may be instituted by either party to the marriage or jointly by both parties to the marriage.

          (1B)  An application for a divorce order in relation to a marriage shall not, without the leave of the court granted under subsection (1C), be filed within the period of 2 years after the date of the marriage unless there is filed with the application a certificate:

                     (a)  stating that the parties to the marriage have considered a reconciliation with the assistance of a specified person, who is:

                              (i)  a family counsellor; or

                             (ii)  if the court is the Family Court, the Federal Circuit Court of Australia or the Family Court of a State--an individual or an organisation nominated for the parties by a family consultant; or

                            (iii)  if the court is not the Family Court, the Federal Circuit Court of Australia or the Family Court of a State--an individual or an organisation nominated for the parties by an appropriately qualified officer of the court; and

                     (b)  signed by that person or on behalf of that organisation, as the case may be.

          (1C)  Notwithstanding subsection (1B), if the court is satisfied that there are special circumstances by reason of which the hearing of an application for a divorce order in relation to a marriage should proceed notwithstanding that the parties have not considered a reconciliation with assistance of the kind referred to in subsection (1B), the court may:

                     (a)  if the application has not been filed--give leave for the application to be filed; or

                     (b)  if the application has been filed--at any time before or during the hearing of the application, declare that it is so satisfied;

and, where the court makes a declaration under paragraph (b), the application shall be deemed to have been duly filed and everything done pursuant to that application shall be as valid and effectual as if the court had, before the application was filed, given leave under paragraph (a) for the application to be filed.

             (2)  Notwithstanding subsections (3) and (3A), a respondent may, in an answer to an application, include an application for any decree or declaration under this Act.

             (3)  Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983 :

                     (a)  a divorce order has taken effect; or

                     (b)  a decree of nullity of marriage has been made;

proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:

                     (c)  in a case referred to in paragraph (a)--the date on which the divorce order took effect; or

                     (d)  in a case referred to in paragraph (b)--the date of the making of the decree.

The court may grant such leave at any time, even if the proceedings have already been instituted.

       (3AA)  However, if such proceedings are instituted with the consent of both of the parties to the marriage, the court may dismiss the proceedings if it is satisfied that, because the consent was obtained by fraud, duress or unconscionable conduct, allowing the proceedings to continue would amount to a miscarriage of justice.

          (3A)  Notwithstanding subsection (3), where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983 :

                     (a)  a divorce order has taken effect or a decree of nullity of marriage has been made; and

                     (b)  the approval under section 87 of a maintenance agreement between the parties to the marriage has been revoked;

proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted:

                     (c)  within the period of 12 months after:

                              (i)  the date on which the divorce order took effect or the date of the making of the decree of nullity, as the case may be; or

                             (ii)  the date on which the approval of the maintenance agreement was revoked;

                            whichever is the later; or

                     (d)  with the leave of the court in which the proceedings are to be instituted;

and not otherwise.

          (3B)  Despite subsection (3), if, whether before or after the commencement of Schedule 2 to the Family Law Amendment Act 2000 :

                     (a)  a divorce order has taken effect or a decree of nullity of marriage has been made; and

                     (b)  a financial agreement between the parties to the marriage has been set aside under section 90K or found to be invalid under section 90KA;

proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted:

                     (c)  within the period of 12 months after the later of:

                              (i)  the date on which the divorce order took effect or the date of the making of the decree of nullity, as the case may be; or

                             (ii)  the date on which the financial agreement was set aside, or found to be invalid, as the case may be; or

                     (d)  with the leave of the court in which the proceedings are to be instituted;

and not otherwise.

             (4)  The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:

                     (a)  that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or

                     (b)  in the case of proceedings in relation to the maintenance of a party to a marriage--that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.

             (5)  Subject to subsection (6), a party to a de facto relationship may apply for:

                     (a)  an order under section 90SE, 90SG or 90SM; or

                     (b)  a declaration under section 90SL;

only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period ).

             (6)  The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:

                     (a)  hardship would be caused to the party or a child if leave were not granted; or

                     (b)  in the case of an application for an order for the maintenance of the party--the party's circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.



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