Can a divorce order be denied if there are no suitable arrangements made for the future care of children to the marriage?

It’s fair to say that undergoing divorce proceedings is never pleasant, and is infinitely more difficult if children are involved. Although Australia is a no fault divorce nation, there may be instances where the court may not grant a divorce if no suitable arrangements are made for the care of children post divorce. However, before we go any further, there are a number of issues that need to arise before the court will take such a drastic course of action.   

When may a divorce not be granted by the court?

Section 55A of the Family Law Act 1975 (Cth) (the Act), states that a divorce order may not take effect unless the court has declared that it is satisfied that:

• there are no children of the marriage under 18 years of age; or
• any children under 18 years of age are specified in the order, and that the proper arrangements have been made for the care, welfare, and development of the children; or
• there are circumstances by reason of which the divorce should take effect even if the court is not satisfied that the proper arrangements have been made.

It should be noted that there is no requirement that the arrangements are to be formalised into an order or a parenting plan before the granting of the divorce.

What information is required by the court?

Some of the information that the court may request can include some of the following:

• where and with whom the children may be living with;
• the school, year level, and how the children are progressing at school;
• information relating to the health or any ongoing medical needs of the children;
• supervision arrangements;
• the frequency the children will see the parent of which they are not residing with;
• the amount of child support being paid.

In circumstances where certain information may not be found, the aforementioned information may not be required for the granting of the divorce.

What if the court is not satisfied?

If the court is not satisfied about the arrangements relating to the children, the court may adjourn the proceedings until a report has been obtained from a family consultant regarding the arrangements, as outlined in s 55A(2) of the Act. However, the court may still grant the divorce.

What about issues related to children or property?

It should be noted, that a divorce order is not a parenting or property order. Any issues relating to children or property may require a separate application to be made. 

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• Divorce
• Children
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• Family Law