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What is a No Fault Divorce?

Published on September 29, 2023

    Profile picture of a family lawyer in Sydney Ms Jessica O'Brien

    About the Author

    Jessica O’Brien

    Since her admission to the Supreme Court of NSW in July 2021, Jessica has worked predominantly in Family Law assisting clients with a wide range of issues including from divorce, separation, child custody and parenting matters, property division, financial agreements, and matters related to domestic violence.

    Since her admission to the Supreme Court of NSW in July 2021, Jessica has worked predominantly in Fa... Read More

    Profile picture of a family lawyer in Sydney Ms Jessica O'Brien

    Jessica O Brien

    Author
    Since her admission to the Supreme Court of NSW in July 2021, Jessica has worked predominantly in Family Law assisting clients with a wide range of issues including from divorce, separation, child custody and parenting matters, property division, financial agreements, and matters related to domestic violence.

    Key Takeaways:

    • The no fault divorce system allows those whose relationship has broken down to be able to apply for divorce without proving that someone is at fault for the relationship ending.
    • The no fault divorce system has been active in Australia since the introduction of the Family Law Act 1975.
    • While no fault divorce removes the hurdle of blame, there are still many matters that need to be resolved when a marriage ends, like how assets will be divided and how you will parent moving forward.
    • Every couple’s experience with divorce is distinct. The system is designed to cater to the individual requirements of each party to allow a resolution to be found.
    • Whether it’s legal advice or just someone to talk to, there’s always help available when it comes to getting a divorce in Australia.

    In this article, we’re going to guide you through the no fault divorce system in Australia, breaking it down in simple terms to help you understand the legal process. Introduced in 1975, the no fault approach means that couples can end their marriage without pointing fingers or laying blame. Instead of getting tangled in the ‘who did what,’ the focus is on moving forward.

    So, if you’re keen to understand your options when it comes to getting divorced in Australia, keep reading to learn about the steps involved and what a no fault divorce really means.

    The history of divorce in Australia

    Before we dive into what no fault divorces are and how you get divorced in Australia, let’s talk about the history of divorce first.

    The laws around divorce and family relationships in Australia and how these matters are approached has changed over time.

    Back in the day, getting a divorce in Australia wasn’t as straightforward as it is today. Before 1975, if you wanted to end your marriage, you had to prove that your partner had done something seriously wrong. Some of the behaviours or actions that could be used as proof of their wrongdoing include substance abuse, committing adultery, cruelty, or desertion. Being able to prove these behaviours wasn’t always easy, which meant that many people stayed married for longer than they wished to.

    cartoon image of divorce and family law timeline.

    1975 saw the introduction of the Family Law Act 1975 (Cth) which saw a significant shift in the way family relationships and the breakdown of them was handled. Shifting the focus away from finding blame and toward a more compassionate, forward-looking approach where the law recognised that sometimes, relationships just break down, no blame needed.

    Today, the Family Law system is designed to support couples in transitioning out of their marriage with as much grace and dignity as possible.

    What is a no fault divorce?

    A no fault divorce is a type of divorce in which neither spouse is required to prove that the other spouse did something wrong to cause the marriage to end, rather that there has been an irretrievable breakdown of the marriage.

    There’s no need to point fingers or prove that one partner did something wrong. The law understands that sometimes, despite our best intentions, relationships change, and couples grow apart.

    As we mentioned above, in the past, couples had to attribute the end of their marriage to specific reasons like such as infidelity, substance abuse and cruelty. But with the no fault system, all that’s needed is the acknowledgment that the relationship has irretrievably broken down. It’s a more compassionate approach, allowing both partners to look forward and not dwell on past grievances.

    What are the requirements of a no fault divorce in Australia?

    To be able to apply for a divorce in Australia, you must meet certain criteria and ensure that a few prerequisite requirements have been completed, these are:

    12-month separation period

    Before you can apply for a divorce, you and your former partner must have been separated for at least 12 months. Separation looks different for everyone but generally means that you need to be leading separate lives – even if you live under the same roof.

    The 12-month separation period essentially helps to establish that the relationship has irretrievably broken down.

    Work out parenting arrangements

    If you have children, you need to ensure that appropriate care arrangements are made from when you separate. The best interest of the child is a fundamental consideration when it comes to family law matters in Australia, and decisions that impact a child must be made with the child’s best interests as the primary concerning factor.

    cartoon image checklist for no fault divorce.

    Marriage validity

    The marriage you’re seeking to end must be legally valid under Australian law to be able to apply for a divorce. It’s also important to note that you don’t necessarily have to have tied the knot in Australia. If the marriage was considered valid in the country where it took place and would have been considered valid if it had taken place in Australia, you’re set. If you want to learn more about getting divorced in Australia after being married in another country, read this article here.

    Australian Connection:

    While you don’t need to have gotten married in Australia, to be able to get divorced, one of the following must apply:

    • Either partner is an Australian citizen; or
    • Either partner has lived in Australia for at least the past 12 months and intends to continue living here; or
    • Either partner regards Australia as their home or plans to live here indefinitely.

    Short marriages 

    If your marriage lasted less than two years, you’d generally need to consider counselling before applying for a divorce. This is to ensure that there is no chance of reconciliation and to help parties understand their reasons for divorce. If parties are unable to attend counselling, they will need to ask for the Court’s permission to seek a divorce without attending counselling. In instances where abuse or domestic violence has occurred, you may be exempt from this requirement too.

    What are the benefits of the no fault divorce system?

    While many people enter into a marriage with the intention of it lasting for the rest of their lives, it doesn’t always work out that way. The no fault divorce system can help to make the divorce process simpler and provide numerous benefits, including:

    Help to reduce conflict

    Divorce proceedings are already difficult enough without having to decide whose fault it is. The no fault divorce system shifts the focus from blame to resolution, which could help to reduce conflict between the divorcing parties.

    Speedier and possibly cheaper

    By focusing on resolution instead of blame, the ability to resolve the divorce may be faster in some cases. This could result in it being a cheaper process for the parties, with less legal fees to pay and obstacles to overcome.

    Emotional well-being 

    Without the weight of having to prove fault, the emotional toll on both partners (and their children, if any) may be lighter.

    While no divorce can be entirely pain-free, the no fault divorce system in Australia aims to put the human element front and centre. It’s about recognising that people are complex and unfortunately, sometimes things don’t work out, but with the right approach, a fresh start is possible for everyone.

    Common misconceptions about the no fault divorce system

    As family law is complex, common misconceptions can develop. When it comes to the no fault divorce system, some of the most common misconceptions about it include:

    No fault divorce is easier, so it means a higher divorce rate

    It’s a common thought, but not entirely accurate.

    In the years immediately following the introduction of the Family Law Act 1975 and the no fault divorce system, the number of divorces increased. However, this increase could possibly be attributed to the fact that many people stayed married because they had no grounds under the previous system to be able to get divorced.

    Since the introduction of no fault divorce, the Australian divorce rate has fluctuated.  The availability of a no fault divorce doesn’t necessarily drive people to divorce; it merely offers a more compassionate pathway when couples decide to part ways.

    No fault divorce means no accountability

    Some believe that no fault divorces mean that there are no responsibilities. While blame isn’t the focus, matters like property settlement, child custody, and financial arrangements are still addressed with the seriousness they deserve, and parties are held accountable to ensure that proper arrangements are made.

    You just sign a form and you’re divorced

    While the no fault system is streamlined, it isn’t as simple as signing a piece of paper. There’s still a process that requires a separation period and many matters that need to be resolved. It allows parties to meet the criteria for getting a divorce in Australia a lot easier, but it does not completely change the divorce system.

    How do you get divorced in Australia?

    The process of applying for a divorce is a relatively simple process – the matters that arise when a couple ends a marriage tend to be more difficult to resolve. The following is a summary of the divorce application process in Australia:

    Separation

    You and your partner need to separate for at least 12 months. In order to separate, both parties need to be aware of the separation, they don’t necessarily need to agree with it, but they do need to be aware.

    Submit a divorce application

    A divorce application can be submitted online, by one or both parties. There are important details to include, like your marriage certificate (information about the documents you may need can be found here). One party can apply for divorce, and this is known as a sole application for divorce. If the parties apply together, this is a joint application. A party does not need their spouse’s permission to submit the application. Applying for divorce does have costs, and up to date cost information can be found on the Federal Circuit and Family Court of Australia website here.

    Serving the application

    This step is about ensuring your partner is aware of the divorce application and is only required when a sole application for divorce is submitted. There are specific rules about how to do this, which you can read about here.

    Setting a hearing date and attending (if necessary) 

    Once everything is in order, there might be a Court hearing. For many, this step is as simple as awaiting a letter with the divorce order. However, if complications arise or if children are involved, attending a divorce hearing might be necessary.

    Receiving the divorce order 

    After the Court is satisfied with all the details, you’ll receive your divorce order. This document marks the official end of your marriage and a new chapter in your life.

    Matters that may need to be resolved when you get divorced

    While the process of getting a divorce in Australia is relatively simple, a number of other matters need to be resolved and these can sometimes be difficult to manage. Below are some of the most common matters that need to resolved when you get divorced:

    Parenting arrangements

    If you have children, appropriate care arrangements must be made. These can be made in numerous ways, including a parenting plan, consent orders or with the help of the Court to get parenting orders.

    Property and Financial Settlements 

    After years of building a life together, dividing assets can feel daunting. Whether it’s the family home, savings, or even debts, these matters are approached with fairness in mind. It’s not about winning or losing; it’s about finding a balance that helps both partners move forward.

    Spousal Maintenance 

    Sometimes, one partner might need a little financial support post-divorce, at least for a while. Spousal maintenance isn’t a given, but if one partner can’t meet their basic needs and the other can afford to help, the Court might step in to ensure everyone stays dry.

    Please keep in mind that these are only some of the other matters you may need to resolve. Every situation and divorce are unique.

    Has your relationship ended?

    If you’re going through a marriage breakdown and you need to get divorced, get in touch with our experienced family law team today. Divorce and the matters that arise can be complicated and cause conflict, however, our team can help you to resolve them and find an outcome that suits you.

    Our divorce lawyers help people all over Australia with all kinds of family law issues that arise due to the end of a relationship and our services are available to you. Call us on 1300 667 461 or book a free consultation online by using the button below.

    Profile picture of a family lawyer in Sydney Ms Jessica O'Brien

    Jessica O Brien

    Author
    Since her admission to the Supreme Court of NSW in July 2021, Jessica has worked predominantly in Family Law assisting clients with a wide range of issues including from divorce, separation, child custody and parenting matters, property division, financial agreements, and matters related to domestic violence.

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