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Understanding Australia’s no-fault divorce

Understanding no-fault divorce in Australia

When it comes to divorce, there are a number of common misconceptions.

Of these, one of the most prominent and recurring misconceptions we have to address is that if it is one spouse’s ‘fault’ that the relationship broke down, the other spouse will fare better when property settlements or child support arrangements are decided.

Clients are often surprised that this is not the case. When the 1975 Family Law Act was passed, a ‘no-fault’ divorce clause was introduced.

This means that for a couple to divorce, it needn’t be proved that either party is ‘at-fault’ for the breakdown of a marriage. The actions of one party in contributing or causing a marriage break down are not considered by the court.

To clarify what the no-fault clause means and how it could affect your divorce and settlements, here are some aspects of the clause.

  • Prior to the 1975 Family Law Act, there had to be proven grounds for divorce. This means that it had to be proven (with evidence) that one party caused the breakdown of the divorce. Acceptable causes included adultery, habitual drunkenness or insanity. This ‘fault’ could then be used as evidence in court proceedings. The Family Law Act of 1975 changed this and a ‘no-fault’ divorce was introduced. Rather than proving that one party broke the marriage contract, a couple now only has to show that they have been separated for 12 months in order for a divorce to be granted.
  • Although married couples no longer need to prove a reason for the breakdown of a marriage, residual fault elements can still be important, particularly when it comes to parenting arrangements. If there is a history of mental illness, substance abuse or domestic violence, this will be taken into consideration by the court when determining parenting arrangements.
  • The no-fault clause was designed to reduce the hostile nature of divorce, and to encourage alternative dispute resolution and mediation as opposed to confrontation, heated court rooms and unnecessary character assassinations. It is also aimed at easing the stress of divorce and making it easier for former spouses to maintain civil relations. In turn, this can also make it easier for children to deal and come to terms with the divorce of their parents.
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