Everything You Need To Know About No-Fault Divorce In Australia

One common misconception that many people have when it comes to filing for divorce is that either party is required to prove that the other is “at fault”. While this was indeed the case in the past, it is no longer a prerequisite thanks to the introduction of the no–fault divorce principle in 1975. If you have questions surrounding the concept of no-fault divorces in Australia, however, it’s highly recommended that you consult with a Family Lawyer to learn whether a no-fault divorce is the right solution for you and your family. To help drive your own research, our own team of Family Lawyers at Oxford Partners Lawyers are here to provide more information on no-fault divorces in Australia, covering what they are, how they came to be developed, and what benefits a no-fault divorce may provide for you and your family.  Here’s everything you need to know about no-fault divorce in Australia.

What is a No-Fault Divorce?

As stated in the Family Law Act 1975 (Cth), no-fault divorce is a legal concept that allows married couples to divorce without assigning blame to either party for the breakdown of the marriage.  The concept of no-fault divorce was introduced into Australia’s legal system primarily to simplify the process of divorce for married couples that are seeking separation or divorce proceedings. Removing the need to examine who is at fault across both parties helps ensure divorce proceedings are easier and more harmonious, supporting Australian families in navigating divorces and separations with reduced conflict and trauma for both parents and children alike.

The History Of No Fault Divorce in Australia

Prior to the new laws pertaining to no-fault divorce introduced in Australia in 1975, the process of filing for divorce was much more lengthy and difficult for couples and families. This was because prior to 1975, either party applying for a divorce was required by law to provide evidence of abuse, adultery, alcoholism, insanity, abandonment and a number of other reasons behind the desire to divorce one’s spouse.  This burden of proof often led to lengthy divorce battles and expensive court fees for everyone involved. Not to mention, the emotional and psychological pain that is often associated with messy divorces.   Without no-fault divorce laws, there were also elevated risks of spousal abuse, and that individuals who found themselves in an unhealthy marriage would have to remain unhappily married to their spouse. Thankfully, with the simplified processes made possible by introducing the concept of no-fault divorces, these risks have largely been mitigated for Australian families.  

Key Reasons for the Introduction of No-Fault Divorce in 1975

The reasoning behind the introduction of the no-fault divorce legislation includes:

• To remove religious and moralistic approaches to marriage;
• To promote the notion that anyone should be able to leave a marriage equally, without having to be legally held for its breakdown;
• To simplify the process of filing for divorce or separation, making divorce proceedings more accessible for all, including for vulnerable or under-resourced Australian citizens;
• To align laws with ever-changing social and cultural shifts.

What Are The Valid Reasons For No-Fault Divorce in Australia?

The next question you probably have is about the valid reasons for no-fault divorce. In Australia, the only reason you need for a no-fault divorce is the irretrievable breakdown of the marriage. Depending on which side of the pond you are on, this can also commonly be referred to as “irreconcilable differences”, “irremediable marriage issues”, or “incompatibility”.   Regardless of your situation, with the introduction of no-fault divorce, you can be assured that divorce is possible. The first and most important thing you should do if you are considering divorce is to get in touch with an experienced Family Lawyer.

What Are The Benefits Of No-Fault Divorce?

Here are just a few benefits that no-fault divorce can offer couples: 

• No-fault divorce has made the process of divorce exponentially simpler and more cost-effective for all parties involved. 
• No-fault divorce helps to reduce the potential hostility and conflicts surrounding divorce. Less conflict also results in lowered chances of emotional harm to dependents.
• No fault divorce plays a critical role in empowering victims of domestic abuse and unhealthy relationships to leave a marriage, particularly because there is no need for a victim to “prove” that they have been abused. 
• Financial settlements are based solely on a spouse's need, ability to pay, and financial contributions to the family as opposed to what they did to cause the divorce. 

Can A No-Fault Divorce Be Contested?

The simple answer to this is yes. If your partner does not agree to a divorce and chooses to contest it, he or she will be required to satisfy the Registrar that there is a procedural reason for why a divorce should not be granted.  A Registrar will need to be satisfied that:

• There was a valid marriage;
• Australia has the jurisdiction to deal with said marriage;
• There is irretrievable breakdown of the marriage;
• Both parties have been separated for a minimum of 12 months prior to divorce applications; and 
• There are arrangements made for any children involved.

For a no-fault divorce application to be contested, the responding party will be required to prove that one (or more) of the above factors are not satisfied. 

Are You Eligible To Apply For No-Fault Divorce?

Some of the current requirements for obtaining a divorce in Australia include: 

• You must have been separated for at least 12 months before you can apply for a divorce.
• At least one party has been residing in Australia for at least 12 months immediately before filing for divorce.
• You must be able to satisfy the courts that there is no reasonable likelihood of resuming married life.
• If you were married overseas and your foreign marriage is recognised in Australia, you must provide the Court with a copy of your marriage certificate that is translated to English, if applicable. 
• Appropriate arrangements are made for the care of minors or children under the age of 18. 

The first thing you should do if you are seeking a no fault divorce is to get in touch with one of our experienced family lawyers who will be able to  help you figure out the process in detail and prepare the Application for Divorce.  To book your free preliminary 30 minute consultation, simply call Oxford Partners at (03) 9670 7577 or complete the form on our contact page and we will get back to you as soon as possible.