Understanding the absolute bar on appeals after divorce takes effect
The Fundamental Principle
Australian family law operates on a bedrock principle: once a divorce order takes effect, it becomes unassailable. This principle, established by the High Court over 70 years ago and consistently applied ever since, creates an absolute barrier to challenging divorce orders after they become final.
The principle serves a critical public policy purpose – certainty of marital status. Without it, chaos would ensue. Former spouses might unknowingly remarry while appeals remained pending, creating the impossible situation of being validly married to two people simultaneously if the original divorce were overturned.
The Statutory Framework
Under the Family Law Act 1975, a divorce order takes effect automatically one month after it is made. During that one-month period, parties may appeal the order as of right within 28 days. After that initial 28-day window, parties can apply for an extension of time to appeal – but only if the divorce has not yet taken effect.
Once the one-month period expires and the divorce takes effect, the statute contains an explicit prohibition: no appeal lies from a divorce order after it takes effect. This prohibition is absolute, creating a jurisdictional bar to any appeal regardless of the circumstances.
The High Court Authority: Brennan v Brennan
The foundational authority is Brennan v Brennan (1953) 89 CLR 129, where the High Court held:
“In view of the very explicit terms of this section it is, in our opinion, beyond doubt that when the conditions of the section have been fulfilled a decree absolute for divorce, however irregularly it may have been obtained, is valid and effective to dissolve the marriage and cannot be set aside.”
This language is striking in its absoluteness. The Court stated at page 136 that the principle applies to “every decree absolute… however irregularly it may have been obtained. After the conditions of the section have been satisfied the decree, however fundamentally impeachable it may theretofore have been, becomes unassailable.”
The High Court recognized that divorce decrees are judgments in rem – they affect the status of parties and require certainty. Once the statutory conditions are fulfilled, subsequent events (particularly remarriage) would make setting aside the decree impossible without creating legal chaos.
Application in Spratley
The principle was tested in remarkably sympathetic circumstances in Spratley and Spratley (1977) FLC ¶90-222. Mr Spratley had been granted no notice whatsoever of divorce proceedings – service had been entirely dispensed with. He only discovered his marriage had been dissolved after the decree became absolute and property orders had been made transferring his assets to his former wife.
Despite this complete denial of natural justice, Watson J held:
“In my opinion sec 93 means precisely what it says – a decree absolute is not appealable… Otherwise once the decree has become absolute that is the end of the matter and the parties are free to remarry again. This is the spirit of the conclusion reached by the High Court in Brennan v Brennan.”
Watson J distinguished between appeals (prohibited once the decree was absolute) and proceedings to declare a decree void (potentially available under different provisions). However, when Mr Spratley then brought such proceedings, Yuill J in Spratley and Spratley (1978) FLC ¶90-414 held that even where there appeared to be jurisdictional error, the decree “was a voidable decree that became valid when the decree nisi became absolute.”
The message was clear: even fundamental procedural defects – including complete absence of notice – do not make a decree void. At most they make it voidable, and once it becomes absolute, it is valid and cannot be challenged.
A Hypothetical Illustration
Consider this scenario: Sarah and Michael divorce. The court grants a divorce order on 15 March 2026. Sarah is unhappy with the decision but her lawyer misses the 28-day appeal deadline by a few hours, attempting to file at 7:12pm when the deadline was 4:30pm that day.
On 16 April 2026 at 12:01am – one month and one day after the divorce order – the divorce automatically takes effect. Sarah’s marriage is dissolved. Later that afternoon, Sarah files an application seeking an extension of time to file her Notice of Appeal out of time.
Can this application succeed?
No. The divorce took effect at 12:01am. The statutory prohibition became operative at that moment. Sarah’s extension application, filed after the divorce had already taken effect, seeks legally impossible relief. Even if granted an extension, any subsequent appeal would be prohibited by statute.
The timing is critical. Had Sarah filed her extension application before 16 April, while the divorce had not yet taken effect, she could potentially have been granted leave to appeal out of time. But once the statutory one-month period expired, the door closed permanently.
The Missed Opportunity
Courts have identified an alternative protective mechanism. Before a divorce order takes effect, a party intending to appeal can seek an order extending the one-month period before the divorce takes effect under s55. This is specifically contemplated by statute “having regard to the possibility of an appeal.”
Such an application should be made at the divorce hearing itself. If Sarah’s lawyer had recognized at the hearing that appeal was likely, they could have sought an order that the divorce not take effect for (say) three months instead of one month. This would have preserved Sarah’s appeal rights by ensuring the divorce remained subject to challenge while the appeal process played out.
The failure to utilize this mechanism cannot be remedied after the fact by attempting to circumvent the statutory prohibition on appeals.
Why Such Harsh Finality?
The policy rationale is compelling. Once divorced, parties are free to remarry. Sarah’s former husband Michael might enter a new marriage, start a new family, build a new life. If Sarah could successfully appeal the divorce years later, Michael would find himself bigamously married – legally married to two people simultaneously. His second marriage would be void, his children potentially illegitimate under some legal frameworks, his property arrangements thrown into chaos.
The law requires bright-line rules about marital status. The one-month period provides a window for challenges. After that, finality is essential to the proper functioning of society.
Void vs Voidable
A critical distinction emerges from the authorities: divorce decrees are not void even when obtained irregularly. They are at most voidable. This distinction matters because void orders are nullities – they never had legal effect and can be disregarded. Voidable orders, by contrast, are valid and effective unless and until set aside.
Brennan and Spratley establish that once a decree becomes absolute, even a voidable decree becomes fully valid. It “becomes unassailable.” The window for challenge closes permanently.
Conclusion
The principle that divorce orders become unassailable once they take effect represents a considered balance between justice to individual parties and the broader public interest in certainty of marital status.
The High Court’s language in Brennan – “beyond doubt,” “cannot be set aside,” “becomes unassailable” – admits no exceptions. The application of this principle in Spratley to facts involving complete denial of natural justice demonstrates its absolute nature.
Parties contemplating appeal of divorce orders must act within the appeal window of 28 days. Do not miss the one-month window. Once that period expires and the divorce takes effect, the statutory prohibition becomes operative and no challenge is possible. The decree, however irregularly it may have been obtained, is valid, final, and unassailable.