Document ID: chunk:federal_register_of_legislation:C2024C00859:section:44:p1
Version: federal_register_of_legislation:C2024C00859
Segment Type: section
Provision Reference: s 44 (pt 1/4)
Character Range: 167530–170214

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.

Proceedings in relation to marriages
 (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.

Limitation on applications for divorce orders within 2 years of 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 Federal Circuit and Family Court of Australia (Division 2) 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 Federal Circuit and Family Court of Australia (Division 2) 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.

Limitation on applications relating to certain maintenance and property proceedings
 (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