‘No Fault’ Divorce

Imagine if your marriage was simply breaking down and you had to actually prove fault or blame to file for divorce from your partner. The reasons for divorce ranged from habitual drunkenness to adultery to insanity, and in many cases, individuals would need to hire private investigators to catch out their partner and use it as evidence against them in court. Prior to the 1975 Family Law Act being passed, this is what couples had to prove to the courts before they could divorce.

Thankfully, today, this is no longer the case.

Since the 1975 Family Law Act was passed in Australia, the ‘no fault’ divorce clause was introduced. The Whitlam government changed the law, to reflect the changing social attitudes to relationships. This means you no longer need to demonstrate fault has occurred which has consequently broken the marriage irretrievably. Now a couple simply has to show that they have been separated for 12 months in order for a divorce to be granted by the courts.

The introduction of the no fault clause was really to help to reduce the hostile nature of divorce by encouraging alternative dispute resolution and mediation between two people who have a relationship breakdown, rather than confrontation, heated court rooms and unnecessary character assassinations. The courts believed a no-fault divorce would assist to make it easier for a separated couple to maintain a civilised, amicable relationship in the future, especially when there were children involved

What does the ‘no fault’ divorce clause mean in practice?

Divorce is the process of legally ending a marriage. In Australia, divorce is a separate process from other related aspects such as parenting arrangements for children and dividing the marital asset pool.

So how can this clause affect your divorce and settlements?

Although married couples no longer need to prove a reason for the breakdown of a marriage, any issues or faults could still play an important factor to be considered, especially when it comes to negotiating parenting arrangements. If there is a history of mental illness, substance abuse or domestic violence, this is carefully considered by the courts when determining suitable parenting arrangements for any children of the newly divorced couple and a court will always look at each situation to consider the best interests of the child.

Fault in the circumstances of divorce is legally irrelevant, meaning that regardless of the circumstances of how the marriage breakdown has come about, it will not affect the property settlement decisions. A couple has 12 months once a divorce has occurred to settle their assets and liabilities. This is a separate process from the divorce application itself.

This ‘no fault’ clause simply reinforces that understanding that relationships can end for a variety of reasons, which may or may not be due to the fault of one or both parties. If a couple are unhappy in their relationship, they now have the right to end the marriage when they see fit.

Since the introduction of no-fault divorce, we are seeing increased privacy when it comes to why a marriage has broken down. Unlike fault divorce – the previous law – court proceedings are no longer part of the public record. This means that none of the intimate and personal disputes of the relationship are not made available publicly – this is progress and something that is worth celebrating when we consider how the laws are slowly evolving with societal attitudes.

What are the public attitudes of this clause?

There is a fair share of both supporters and opponents when it comes to the no fault divorce clause.

Feminists in particular have been largely been supportive of the clause, seeing them as leading to greater freedom for women to leave unhappy or abusive relationships. Many believe it makes sense not to force a couple to continue their relationship if neither have a desire to be in it. It also means couples can end their marriage rather amicably without airing ‘dirty laundry’ publicly and bringing out the boxing gloves.

Meanwhile, opponents of no-fault divorce believe that this clause simply it makes ending a marriage too easy for people to walk away. They believe this is why the national divorce rate has continued to climb over the years.

How to apply for no fault divorce?

Before applying for a no-fault divorce, we encourage you to seek legal advice. A lawyer will assist you to understand how to apply for divorce in Australia. Once you have obtained this legal advice, you or your lawyer will complete an Application for Divorce. This application can be filed online through the Commonwealth courts portal or in person at the court registry. Once this and the associated administrative tasks have been completed, you will be given a hearing date. Neither party is required to attend the hearing if:

• you do not have children under the age of 18; or
• the application for divorce is a joint application.

If your divorce application is successful, the court will grant a divorce order. 

More information

If you have any further questions regarding no fault divorces in Australia and what your rights are for your individual circumstances, please do not hesitate to contact our team of experienced solicitors who can give you expert advice suited.