No-fault divorce in Australia: Understanding your rights

If you are about to go through or are going through a divorce, understanding your rights and how the no-fault divorce could affect your family law matters is a practical and important step to take.

By Bridget O’Kane, Practice Leader at Australian Family Lawyers (Canberra, ACT)

What is no-fault divorce?

In Australia, you no longer need to show that one spouse was at fault to obtain a divorce. Under the Family Law Act, the only ground for divorce that a party needs to show is the irretrievable breakdown of the relationship, which is demonstrated by 12 months of separation. 

Parties can even apply for a divorce even while they were living under the same roof, provided they can show the Court they were separated under one roof. 

This means that a court does not consider which partner was at fault in the marriage breakdown before granting a divorce. 

Prior to the introduction of the Family Law Act couples in Australia who wished to get divorced pursuant to the Marriage Causes Act had to prove one of 14 grounds (with evidence) for divorce including:

• desertion
• adultery 
• habitual drunkenness
• cruelty
• insanity and 
• imprisonment

This often involved the use of private investigators who would tail cheating spouses and hide outside their houses to get evidence of them ‘in the act’ which would then be used as evidence in the divorce hearing.

The divorce reform in the mid-1970s established the principle of no-fault divorce in Australia to allow couples to divorce relatively quickly and easily without assigning fault and allowing parties to ‘exit a marriage equally’.

The benefits of no-fault divorce

Whilst many clients are disappointed to learn that their spouse’s infidelity or bad behaviour is not relevant to their divorce, no-fault divorce has made the process of divorce simpler and cheaper and was aimed to reduce the enmity surrounding divorce.

Although, no-fault divorce means a party’s bad behaviour is not relevant for the divorce proceedings it does not follow that their behaviour is not relevant for family law proceedings especially parenting proceedings.

A party’s mental health, substance abuse, domestic violence and other enduring fault elements are relevant for parenting matters and evidence can be adduced in relation to these issues. 

Who can apply for no-fault divorces?

You do not have to have been married in Australia to apply for a no-fault divorce.

A party to a marriage who meets any of the below criteria can apply for divorce in Australia if they:

1. regard Australia as their home and intend to live indefinitely in Australia are an Australian citizen or resident, or
2. are an Australia citizen by birth or descent
3. are an Australia citizen by grant of an Australia citizenship
4. ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Divorce is a difficult and stressful time for those going through it. Should you require assistance and advice in relation to divorce or parenting and property matters please contact our friendly team via the form below.