Feb 193 min read

Is Rescinding (Reversing) of A Divorce Order Possible?

Divorce can be a complex and emotionally challenging process, often involving significant legal implications. However, what happens if parties wish to rescind (cancel/overturn) a divorce order after the court has made one? Is it possible, and under what circumstances?

Rescinding a Divorce Order: Exploring Relevant Legal Provisions

Section 57 of the Family Law Act 1975 allows for rescission (cancellation) of a divorce order in specific situations. If the parties reconcile and apply to the court before the divorce order takes effect, the court may rescind the order. This provides an opportunity, for couples who have reconciled, to stop the divorce process.

However, it's crucial to note that once the divorce order has taken effect, it becomes too late to apply for rescission. Nonetheless, reconciled parties retain the option to remarry if they wish to formalise their relationship again.

When A Divorce Order Takes Effect? Can The Time for Divorce to Become Final Be Extended or Reduced?

Usually, after a divorce order is made, there's a waiting period before it becomes final. This waiting period is one month from when the divorce order is made or from when an order is made under section 55A Family Law Act 1975 (regarding the care, welfare, and development of the children of the marriage) - whichever is later. However, in some cases, this period may be extended or reduced by the court if there are special circumstances justifying an extension or reduction of time in this period.

Grounds for Application: Section 58 of the Family Law Act

Another avenue for rescinding a divorce order is outlined in section 58 of the Family Law Act 1975. This section allows the court to rescind the order upon application by a party involved in the proceedings or upon intervention by the Attorney-General before the divorce order takes effect.

For rescission to occur under this provision, the court must be satisfied that there has been a miscarriage of justice. This could be due to various circumstances, such as fraud, perjury, suppression of evidence, or other irregularities in the proceedings. If the court deems it appropriate, it may rescind the divorce order and, if necessary, order a rehearing of the proceedings.

Instances of Rescission: Understanding Past Cases

Historically, divorce orders have been rescinded under section 58 of the Family Law Act 1975 or section 75 of the former Matrimonial Causes Act 1959 (Cth) in various situations. These include cases where evidence was suppressed, or false testimony was provided, where the court was misled during the proceedings, where a party failed to appear due to a solicitor's error, or where one party was not given a fair opportunity to be heard by the trial judge.

Establishing a "Miscarriage of Justice"

In determining whether a miscarriage of justice has occurred, it's essential to understand that it's not always necessary to demonstrate that the court would have reached a different conclusion if the irregularity had not occurred. However, it's unlikely for the court to rescind a decree if the objection pertains only to a peripheral or inconsequential matter.

Conclusion: Seeking Legal Advice

Navigating the legal intricacies of divorce proceedings, including the possibility of rescission of a divorce order, can be challenging. If you believe that you have grounds for rescinding a divorce order or have questions regarding your legal rights and options, it's very important to seek guidance from experienced legal professionals who can provide tailored advice based on your specific circumstances.

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