|Description of this FunctionDescription of this Function|
The Divorce and Matrimonial Causes Act 1861 (No.125) conferred upon the Supreme Court of Victoria, jurisdiction in matters matrimonial and authority in certain cases to decree the dissolution of a marriage. This remained the case until the passing of the Commonwealth Family Law Act 1975. Until 1861 divorce was a matter for the ecclesiastical courts. This was also the situation in England until 1857/58.
The grounds for obtaining a divorce were virtually unchanged from 1861 to 1976. Section 5 of the original Act stated that, a divorce might be obtained either by the husband or wife on the grounds of adultery or cruelty or of desertion without cause for a period of two years.
Divorce proceedings commenced when the husband or wife or their legal representative (known as a Proctor) lodged a Petition for Dissolution of Marriage at the Prothonotarys Office. The party seeking the divorce was called the petitioner and the other person the respondent. In cases of adultery, the respondents alleged sexual partner was named on the Petition for Dissolution of Marriage as the co-respondent.
Every decree for dissolution or nullity of marriage was, in the first instance, a Decree Nisi or provisional judgement. The decree became Absolute after three months provided that no party showed cause that the Courts decision was obtained by collusion, or that material facts were not previously disclosed to the Court. The Decree established the parties; presiding judge; date of hearing; order of Nisi on grounds of either desertion, adultery or cruelty; an order of the costs to be paid by the respondent; and a decision regarding the custody and maintenance of children.
When a divorce became Absolute both parties were then free to re-marry. If either party was dissatisfied with the decision of the Court they could, within three months of the Decree Nisi, lodge an appeal to the Full Court of the Supreme Court. A further appeal could then be lodged with the Privy Council in London.
The original Act also gave the Court the power to set alimony payments (section 19) and make orders as to the custody of children (section 22).
In 1976, with the proclamation of the Federal Family Law Act, responsibility for the determination of divorce cases was transferred to the Commonwealth.