Harwood and Jade

This matter concerned an application by the husband seeking a declaration that his divorce was irregular and should be set aside. The dispute arose from the husband's assertion that the divorce proceedings were improperly commenced due to non-compliance with specific provisions of the *Family Law Act 1975* (Cth) concerning the timing of divorce applications and adequate service. The case was heard by Judicial Registrar Loughnan.

The primary legal issue before the court was whether it had the power to make a declaration under section 113 of the *Family Law Act 1975* that the divorce was irregular and should be set aside. This required the court to consider the scope of its discretion under section 113 and the circumstances under which a declaration would be considered "justified," particularly in light of the husband's claims regarding the alleged procedural irregularities in the divorce application, specifically relating to sections 44(1B) and 44(1C) of the Act and the adequacy of service.

Judicial Registrar Loughnan considered the principles governing the exercise of declaratory jurisdiction, referencing *Sutherland Shire Council v Leyendekkers* and *Ibeneweka v Egbuna*. The court noted that while the power to grant a declaration should be exercised with a "proper sense of responsibility," there were no strict legal restrictions beyond the requirement that the court be satisfied a declaration is justified. The husband's argument centred on the alleged failure to comply with section 44(1B) and (1C) of the *Family Law Act 1975*, which impose restrictions on filing divorce applications within two years of marriage without specific reconciliation assistance or court leave. The court found that the husband had not established grounds for setting aside the divorce, implying that the procedural requirements, as argued by the husband, were either met or not sufficiently irregular to warrant a declaration.

The application for final orders filed on behalf of the husband was dismissed.