No Fault Divorce in Australia

No Fault Divorce in Australia

No Fault Divorce in Australia

You don’t need to have grounds for divorce today, meaning they had to prove that your previous spouse was responsible for the breakdown of their marriage. Adultery was one of the more common reasons cited, with evidence often supplied by paid private investigators. The Family Court system introduced ‘no-fault’ divorce in 1975. More than one hundred amendments have been made to the Family Law Act since then.

A Historical Picture

For the majority of the 20th Century, marriage and divorce were the jurisdictions of the State. However, things changed when the Matrimonial Causes Bill, a federal law, was introduced in 1959. It listed 14 grounds for divorce, including adultery, cruelty, imprisonment, insanity, drunkenness and desertion. Society’s concept of marriage changed during the 1960s. De facto relationships increased as many people decided marriage wasn’t necessary. Several social reforms were proposed by the Whitlman government, including parental custody and regulating divorce in Australia. In 1975, the Family Law Act was passed, bringing in the no-fault divorce and establishing a federal court to deal with issues of family law. However, a substantial increase in divorce rates across Australia resulted in the first 12 months overwhelming the courts. Family law is not just about marital issues; the Family Court also handles mental illness, abuse, alcohol abuse and violence. A thorough review of the Family Law Act was carried out by the Australian Law Reform Commission in 2017. The more than 1200 written contributions received highlighted several significant concerns, including:
  • The wellbeing of people involved in the system;
  • The enforcing of orders made by the courts;
  • The complexity of the law and its procedures;
  • The cost of going through the system and how long it takes;
  • The accountability of those involved in the system.
The government handed down the final in 2019 with 60 recommendations. The first was that Australian states and territories should establish specialised family law courts and abolish federal family courts such as the Family Court of Australia. This recommendation would effectively reverse the effect of the Family Law Act of 1975, creating one national Court. This recommendation was because family violence wasn’t covered when the Act was initially designed back in 1974. After all, family law was typically viewed as a private dispute between the marital pair.

Misconceptions Within Family Law

Misconceptions are rife within the realm of family law, particularly around the conduct of former de facto partners or spouses. They include:
  • The family court’s an appropriate place to air personal grievances about an ex-partner’s behaviour.
  • When finalising property settlement, obtaining a divorce, making parenting arrangements, child support, or spousal maintenance, the Court should consider apportioning blame.
Far from being constructive, these misconceptions more often than not make reaching an amicable solution impossible. Fortunately, you don’t need to prove blame or fault in today’s family law system to secure your divorce since the introduction of a no-fault divorce system.

How The No-Fault Divorce Came To Be

According to the Matrimonial Causes Act 1959 (Cth), there were 14 reasons for divorce, including desertion, insanity, habitual drunkenness, cruelty, imprisonment and adultery. Therefore, proof that the other party had committed one of these marital infractions was necessary to gain a divorce. That is, one member of the married couple had to be at fault to be successful until the Family Law Act (Cth) was introduced in 1975, and the onus of proof was done away with. The government introduced the new legislation:
  • To do away with the religious or moralistic approach to marriage;
  • To keep the law in sync with cultural and social changes, including the rising number of de facto relationships;
  • To promote equality within the union, including the ease with which either party could opt out of the marriage.
Since this introduction, it has become more accessible and less expensive to divorce. Property settlement, child support and custody and spousal maintenance disputes can still cause angst, though.

Eligibility Criteria For A No-Fault Divorce

To be eligible for a no-fault divorce you must meet the following criteria.
  • A formal separation must have occurred.
  • At least one of you must be resident in Australia.
  • Appropriate arrangements have been made to look after any children of the marriage under 18 years of age.
The estranged couple must convince the Court that the marriage has irretrievably broken down, mainly as it is now the sole reason for divorce. To prove an irretrievable breakdown, the couple must have been separated for at least one year. While they could live under the same roof, they must demonstrate that they don’t carry on the activities that a married couple normally do together. If you live in the same dwelling at the time of your divorce application, you must provide an affidavit from a third party as evidence. So long as one of you is resident in Australia, you can still apply for a divorce here if you married overseas if:
  • The person residing here considers Australia to be their home, and they intend to live here indefinitely.
  • The person’s citizenship was through birth or descent.
  • The person’s Australian citizenship was formally granted.
  • The person is currently living in Australia and has done so for the year immediately preceding the filing of their divorce application.
Where children younger than 18 years exist, the estranged couple must prove to the Court that satisfactory arrangements have been made for the children’s financial welfare, care, and support.


1. How will the Divorce Settlement Go?

Answer: Divorce settlements are dealt with differently from other legal matters because no fault divorces mean that the Court is not looking to decide who the guilty party is. They are not looking to puns the guilty party and compensate the innocent party for being wronged. However, sometimes the Court will consider whether the actions of one of the marital parties depleted the assets or affected the other party’s ability to earn a living.

2. Does ‘Fault’ Factor Into Parenting Proceedings?

Answer: The Family Court doesn’t look at the morality of either party in parenting proceedings. When determining how much time the children get to spend with each of their parents and with which one they will predominantly preside, the Court will consider the behaviour of both parties when deciding what is in the children’s best interests. The Court looks at whether children require protection from harm, be it psychological, emotional or physical. Placing blame on one another only creates additional stress for both parents and their children. Due to this flow-on effect to the children, the Court tends to look unfavourably upon the parent who plays the blame game.

3. When it Comes to Family Law Issues, What Should I Remember?

  • Suppose you believe the conduct of your former spouse is relevant to the proceedings to determine your parenting arrangements or property entitlements, you should seek legal advice from a seasoned family lawyer.
  • Do your best to avoid playing the blame game. It does nothing to help you resolve your parenting and financial matters in an amicable way.
  • The Court will only consider conduct relevant to the proceedings. For example, they may consider violent behaviour during a parenting settlement, but they are unlikely to be interested in a moral misdemeanour.
  • Ultimately, the Court does not punish the wicked or compensate the innocent.

4. Does the Family Court Deal with My Property Settlement at the Same Time As My No Fault Divorce?

Answer: No. Your property settlement will not be dealt with as part of your divorce proceedings. In simple terms, property settlement divides liabilities and assets between parties that were once married or living in a de facto relationship. While there is no hard-and-fast formula for working out how marital property is divided, the Court generally considers:
  • The contributions made by each party toward the property acquired during the relationship.
  • How each party contributed to parenting and homemaking.
  • The contributions of a non-financial nature made by the individuals.
  • What each party’s future needs are.

5. How are Parenting Arrangements Dealt with in a No Fault Divorce?

Answer: While fault is not a factor in gaining a no-fault divorce, certain elements are typically taken into account when cementing child support arrangements to ensure that all decisions made are in the best interests of the children and their overall wellbeing. Any history of domestic violence, family violence, drug and alcohol abuse or even mental illness may be considered by the Court in the family law proceedings to determine what is best for the children. Appropriate and adequate arrangements for the children’s welfare, development, and care are so important in divorce proceedings that the Court will not grant a divorce order until such arrangements have been made to the Court’s satisfaction.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with No Fault Divorce or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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