Divorce Case Files, Melbourne
||1861 - 1976
||Series in Custody
||1861 - 1976
||1861 - 1988
|Format of Records:
|Agency which created this SeriesAgency which created this Series|
|Agency currently responsible for this SeriesAgency currently responsible for this Series|
|Description of this SeriesDescription of this Series|
- How to use the Records
Consult VPRS 5335 Index to Divorce Case Files to obtain the year and case number for the relevant divorce.
Refer to the Macbeth Divorce Index on microfiche for the period 1861-1900. From 1900 onwards, the original index will need to be consulted.
Once the case number has been ascertained, scan the consignment details for the unit containing the required file number.
For a summary of the divorce, including the judgement, refer to VPRS 5334 Divorce Cause Books.
- Function / Content
This series consists of case files created to manage divorce proceedings in the Supreme Court. 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 (documents relating to some of these cases may be found in VPRS 282 Ecclesiastical Jurisdiction Equity Case Files).
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.
Most of the documents that constitute the Case File relate to the pre-hearing process (ie before the case was heard in Court) and examples of documents on the case file may include:
* Petition for Dissolution of Marriage;
* Affidavit of Petitioner verifying the Petition;
* Praecipe for Citation;
* Appearance on behalf of the Respondent;
* Praecipe for Search;
* Affidavit of Service of Citation;
* Respondents Answer;
* Affidavits verifying answers;
* Copy Pleadings;
* Praecipe to set cause down for hearing;
* Notices to Produce;
* Decree Nisi;
* Costs of Petitioner; and
* Search for Decree Absolute.
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 establishes 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 re 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). Contested post divorce financial settlements are documented in VPRS 267 Civil Case Files, which is indexed by VPRS 5327 Index to Action Cause Books.
This series ended in 1976 with the passing of the Commonwealth Family Law Act 1975. From this time divorce became a Commonwealth matter; and researchers should contact either the Family Court of Australia or National Archives of Australia for information regarding divorce cases for this period.
- Recordkeeping System
The divorce case files are arranged in two sequences. The first sequence, from 1861-1890, is arranged in a single-number filing sequence, ie 1-816. The second sequence, from 1891-1976, is arranged in a straight annual-number sequence, ie 1891/01-1976/19, commencing with case 1 at the beginning of each year.
The cover of each case file provides a list of all the documents therein. Each document is numbered in the top right-hand corner, and arranged on the file in that order. The sequence of the documents on each file represents the order in which they were lodged at the Prothonotarys Office.
Case numbers were assigned from VPRS 5334 Divorce Cause Books. This series recorded petitions for hearings and the summary information with respect to each petition. Details given are when the case was set down, i.e. when the petition was received and registered by the court; the names of the petitioner, defendant and any co-defendants; date of hearing; presiding judge; the delivery of judgement; the name of the suit; and the names of the proctors (or attorneys) for both the petitioner and respondent. Reference may be given to the page in VPRS 5336 Divorce and Matrimonial Court Book upon which the hearing was recorded.
VPRS 5335 Index to Divorce Case Files was created to reference VPRS 5334 Divorce Cause Books and this series. It is arranged alphabetically by the petitioners surname. For preservation reasons researchers should use the Macbeth Divorce Index on microfiche for the period 1861-1900. This is a computerised version of the original index.
VPRS 5515 Divorce and Matrimonial Causes Jurisdiction Court Books was created to administer and timetable divorce cases heard by the court. Cases are entered in trial number order with cases beginning at number 1 at the start of each month. They record the date the cause was entered; the petitioner and respondent; divorce case number (as allocated in VPRS 5334 Divorce Cause Books); the petitioners and respondents attorneys; and the verdict.
VPRS 5336 Divorce and Matrimonial Court Minute Books was the judges personal diary or personal court record. It is controlled by an alphabetical index at the beginning of each volume, which is arranged by the petitioners surname and records the petitioner, respondent and corresponding page number within the volume. The judges notes record the date; case number; petitioner and respondent; witness names; verdict and notes. Depending upon the complexity of the case, notes can be quite detailed.
VPRS 5333 Divorce Decree Books was created to record all Decrees Nisi granted for the period 1943-1947. A copy of the Decree Nisi has been pasted onto each page of the volume. Entries were made in the order of the grant of the Decree Nisi. There is an alphabetical index at the beginning of each volume that provides the divorce case file number; the name of the petitioner, defendant and co-defendant; the relevant page number within the volume; and the date the Nisi was granted. The index is arranged by the petitioners surname. In some instances, a notation shows the receipt of the original by the petitioner or the petitioners attorney.
Created for reference purposes for the period 1945-1951, VPRS 5500 Record of Decree Nisi Granted listed the Decrees Nisi granted by the court and is arranged in chronological order from the date that the petition was granted. It records the divorce case number; the name of the person to whom the divorce was granted; the date the decree was filed; and any particulars such as reference to other divorce jurisdictions, eg from interstate. At the back of each volume are lists of petitions that had been dismissed or discontinued.
VPRS 10004 Divorce Correspondence Files contains inward and attached outward correspondence relating to receipts of money orders received from alimony and maintenance orders issued by the court, and requests for documentary evidence of divorce proceedings for people wishing to remarry. The series contains correspondence not related to divorce proceedings and may have been culled from another series.
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