What is no-fault divorce in Australia?
Australia has had a no fault divorce system since 1975. At its simplest, it means that it’s not necessary for either spouse to be at fault for a divorce to be granted. For example, one spouse doesn’t need to prove the other spouse’s wrongdoing for a divorce application to be approved.
Divorcing parties only need to show an irretrievable breakdown in the marriage. The parties must prove this to a court in various of ways, including legal separation. For more information, see our Divorce Requirements page.
What were the grounds for fault in divorce?
Before 1975, if a spouse sought a divorce, they would have to prove fault, or serious misconduct, in any one category, including:
– Alcohol abuse
– Unreasonable behaviour
Proving fault usually meant a long and expensive trial, which was prohibitive for many people. Others didn’t wish to publicise their issues.
Does fault affect other family law issues?
Before 1975, in the rare event of a divorce hearing, a finding of fault could affect compensation, property settlement and orders for children.
But now, with no-fault divorce, a court won’t consider fault when deciding other family law issues.
However, a court may take into account any family violence when making orders about property settlements and parenting orders, to ensure safety of the other spouse and of any children.
For parenting orders, even though a court won’t consider fault, it will consider whether the spouses are fit and proper people to care for and meet their children’s needs. This is known as doing what is in the children’s best interests.
Another example is the court considering one spouse’s history of drug abuse when making parenting orders. But it won’t take this into account this when deciding whether to grant a divorce application.