When faced with a topic we are unfamiliar with or that we find daunting, more than ever before, we have tendency to go online and “do our own research”, arm ourselves with knowledge and draw our own conclusions before making a decision that is right for us.

Under Australian law, a reason is not required to be given for an application for divorce. However, there must still be proof of the marriage’s ‘irretrievable breakdown’ in order for a divorce to be granted by the courts. Section 48 of the Family Law Act (the FLA) dictates that the court will only make an order for divorce if the parties have shown that there has been an irretrievable breakdown of the marriage by separating from one another for at least one year (note this does not require living separately). Other elements also must be proven to show an ‘irretrievable breakdown’ to allow the court to grant the parties a divorce.

For parties to a marriage who have made the decision to separate, there are a number of conditions that must be met in order to establish separation.

Where a spouse passes away before property proceedings have concluded, the proceedings can be continued by the legal personal representative of the deceased party under s.79(8) of the Family Law Act 1975.

J and S are happily married. They each sign a Will that benefits the other. They also enter into an Enduring Power of Attorney (EPA) and Enduring Power of Guardianship (EPG) appointing each other to these important positions. All is good on the home front! What could possibly go wrong?

The answer is simple, the Family Court has no jurisdiction to do anything when both parties pass away during Family Court property proceedings other than strike out the application.