Australia's No-Fault Divorce System

In Australia, the principle of no-fault divorce was introduced by the Whitlam Government by way of the Family Law Act 1975. This means that the Federal Circuit and Family Court of Australia (FCFCA) does not need to consider whether a partner’s actions, such as committing adultery, were to blame for the breakdown of the marriage. Under the no-fault divorce system, the only ground for divorce is that the marriage has broken down irretrievably, which is demonstrated by 12 months of separation. Parties can even be separated under one roof, so long as they are living “separately and apart”, which essentially means living separate lives.

The old “fault” system of divorce

Prior to the introduction of the no-fault divorce system along with the Act, the Matrimonial Causes Act 1959 was in force and stipulated that, in order to grant a divorce, the court needed to be satisfied, upon a review of the evidence, that one party had caused the breakdown of the marriage. The evidentiary burden to establish fault promoted an extremely adversarial family law system. Establishing fault was also important because it resulted in a favourable outcome in terms of property settlement for the party who was not at fault.

In the absence of any fault, a divorce order would not be made. In reality, this meant that, even if couples agreed to separate amicably, they would need to fabricate fault. Examples of grounds for divorce stipulated within the Matrimonial Causes Act included adultery, desertion, habitual drunkenness, insanity, cruelty, and imprisonment.

The old “fault” system of divorce in Australia was driven by a deep-rooted moralistic approach to marriage grounded in old English common law, which was indicative of societal norms of that time, but which has no place in modern society. It did, however, offer a degree of vindication for a spouse who felt betrayed by the infidelity of their husband or wife.

As wronged as a spouse may feel by the adulterous actions of their partner, which may have contributed to the breakdown of the marriage, any such breach of trust and of the moral contract entered into between parties to a marriage, is no longer relevant for the purposes of obtaining a divorce. Similarly, it is no longer relevant to any property settlement between the parties to the marriage. However, some of those grounds for divorce contained in the Matrimonial Causes Act, such a mental illness and drug and alcohol abuse, may be of relevance in contested parenting matters. It is therefore important to discuss any such issues with your family lawyer.

Applying for divorce

Before making an application to the court for a divorce, you should seek legal advice from a specialist family lawyer in relation to your family law rights, entitlements and responsibilities. An application for divorce can be made jointly, or by one party to the marriage. If you are granted a divorce by the court, the order will take effect one month and one day from the making of the Order.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.