No-fault divorce has been established in Australia since 1975 when the Whitlam Government introduced the Family Law Act 1975. However, to this day there are still several misconceptions when it comes to divorce in Australia.
The most common misconception is that if it is one spouse’s ‘fault’ that the marriage has broken down then the other spouse will benefit more when property settlement or child support arrangements are decided.
This is no longer the case since the 1975 Family Law Act was passed and ‘no-fault’ divorce clause was introduced. The only grounds for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation.
Before 1975, orders such as compensation or a favourable property settlement could flow from the grant of a divorce, based on one party being in breach of the marriage contract. However, since the no-fault divorce was implemented property settlement and child arrangements are decided separately from a divorce.
Prior to the Family Law Act being passed in 1975, the dissolution of a marriage was approached as a matter of contract law. The Courts required proof (evidence) that one party within the marriage was at fault for the breakdown of the relationship.
There were 14 grounds for the grant of divorce, including adultery, habitual drunkenness, insanity and cruelty. Proving one party was at ‘fault’ required evidence and going through divorce proceedings was expensive and embarrassing for the families involved, which meant a lot unhappy couples were unable or not willing to get divorced.
The changing social attitudes to relationships was reflected in changes to the law in 1975, as it was and is widely accepted that parties to a marriage have the right to end the marriage when they see fit.
As mentioned above, divorce and property settlements are decided separately. Property settlement is the division of assets and liabilities between former spouses or parties of a de facto relationship. No specific formula is used for dividing marital property, however the Courts will consider:
Related Article: Am I entitled to spouse maintenance?
Although couples seeking a divorce no longer need to prove one party was at fault for the breakdown of the marriage, there are still residual elements that can be important when it comes to parenting arrangements. For example, if there is a history or substance abuse, domestic violence or mental illness, this may be taken into consideration by the Court when determining what is in the best interest of the couple’s children.
Until adequate arrangements have been made for the care, welfare and development of a couple’s children, divorce won’t be granted by the Court.
Related Article: Child Support – An Essential Guide
Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email [email protected]