In 1975, the Whitlam Government introduced the Family Law Act.  For the first time in Australia, people could get divorced without having to prove that one party was at fault.

Before No Fault Divorce

Before no fault divorce, if a married person wanted to get a divorce, he or she needed to show in court that the other party was at fault for a particular reason set out in the law. Reasons for a fault based divorce included adultery or cruelty. Proving certain “faults” required evidence in court, leading to an extremely adversarial system in which even the most amicable of divorces could turn bitter. Proving fault was very important because it would have a favourable effect on the property settlement of the party not at fault.  In effect, the party at fault was punished.  Children of divorcing couples in particular suffered as a result of the extremes that their parents needed to go through in order to prove or defend themselves against an allegation of fault.

No Fault Divorce

Living separately and apart

Now in divorce and marriage law the only requirement for divorce is that the marriage has irretrievably broken down.  This is proved simply by showing that the parties have been separated for a period of at least 12 months.  The couple does not even have to be living in separate homes so long as they have led separate lives for at least 12 months.  Even sharing housework or providing household services to each other does not necessarily negate the idea that  couples have separated.

Directly after the introduction of no fault divorce, many couples who had been leading separate lives but did not wish to go through the trauma of divorce proceedings took advantage of the less adversarial divorce. The number of couples divorcing each year in Australia has settled to approximately 50,000 per year.

Who can apply?

Either spouse or both spouses jointly may apply for a divorce. Over the years, a number of commentators have predicted that no fault divorce would lead to a huge increase in unilateral divorce applications, where one party could apply and be granted a divorce against the wishes of his or her spouse.  Commentators argued that this uncertainty would leave married people vulnerable to sudden changes in financial security and even undermine parents’ certainty that they can live with their children.  In short, many commentators argued that this insecurity compromises the whole institution of marriage.

It is true that initially, unilateral applications for divorce were high.  However, according to the Australian Bureau of Statistics, over the past 20 years the proportion of joint applications for divorce has been increasing.  Now joint applications are the highest applicant type of all divorce applications.

No fault divorce and privacy

With the introduction of no fault divorce came increased privacy. Unlike the fault based system, the court proceedings are not part of the public record unless the judge hearing the case authorises it to be public; a relatively rare occurrence.  Now, the only aspect of the proceedings that an outside party can access is the certificate of divorce to show that the divorce has taken effect.  No other details will be made public.

Property Settlements and No Fault Divorce

Fault in divorce proceedings has now become legally irrelevant.  That means that it will not effect the property settlement of the divorcing couple although you must remember that once your divorce is finalised you have only 12 months from the date of your divorce to make an application to the court for property settlement.  The property settlement is decided separately from the divorce.  The law says that one party to the marriage must maintain the other party, to the extent that they are reasonably able to do so, if the other party is unable to support himself or herself.  The law sets out many matters that the court can take into account when deciding the level of spousal maintenance.   The court can take into account the commitments of each party that affect their ability to maintain themselves and the responsibilities of the parties to support other people.  The fault of either party is, however, not at issue.

Children and No Fault Divorce

A no fault divorce will not take effect until the relevant court has determined that proper arrangements have been made for the care, welfare and development of the couple’s children. If during divorce proceedings, the court doubts that there are proper arrangements made for the children, then the court may adjourn the proceedings until a family consultant has provided the court with a report about the children’s arrangements.  A child is considered a child of the marriage even if he or she is not a child of either spouse, so long as the child was treated by the husband and wife as a child of their family immediately before the husband and wife separated.

Applying for a no fault divorce

Before applying for a no fault divorce, you should seek legal advice so that you can understand your legal rights and responsibilities. A lawyer can also explain how the law applies to your case.  Once you have had legal advice, you or your lawyer can complete an Application for Divorce, which can be filed through the Commonwealth courts portal or at the court registry.  There are a number of administrative tasks relating to the divorce application that need to be carried out.  Once these 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 you need to attend the hearing, you can apply to the court to attend by telephone.  If your divorce application is successful, then the court will grant a divorce order.  The order becomes final one month and one day after it is made.  You can only remarry once the divorce order becomes final.

Where to start

No fault divorce in Australia can be a mutual, relatively amicable proceeding.  We recommend that you obtain legal advice to ensure that your divorce runs as smoothly, fairly and amicably as possible.

Owen Hodge has a team of expert divorce lawyers in Sydney who are able to assist you. Call us today at 1800 770 780 or contact us via ohl@owenhodge.com.au to schedule a consultation with one of our experienced divorce lawyers.