Thursday, 4 February 2016

GUEST POST No Fault Divorce: the Australian Experience

by Anna Parker
Nicholes Family Law, Melbourne, Australia
In the context of the ongoing debate about the introduction of no fault divorce, it may be instructive to reflect on the experience in Australia, where a no fault divorce system, with similarities to that presently before the House of Commons, has been operating successfully for many years.

Australia has had no fault divorce since the commencement of its Family Law Act 1975 on 5 January 1976. The sole ground for divorce in Australia is that the marriage has broken down irretrievably. That ground can be established if, and only if, the court hearing the application for a divorce order is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application. Either party to the marriage can unilaterally bring about a separation.

The granting of a divorce order is almost automatic upon an application being made following 12 months’ separation, subject to a small number of exceptions, including that the court will not make a divorce order if it is satisfied that there is a reasonable likelihood of cohabitation being resumed, and a requirement that the court consider whether proper arrangements in all the circumstances have been made for the care, welfare and development of any children of the marriage who have not attained the age of 18 years.

An application for divorce may be made by one party to the marriage or by both parties jointly. Where a sole application is made, it is necessary to prove that the application has been served on the other party, but that party need not participate. Divorce applications are dealt with by way of a short, largely administrative court hearing. Where there are no children under the age of 18 or where a joint application is made, a court appearance is generally not required at all.

There is no role for fault-based allegations in divorce applications in Australia. Conduct is not legally relevant to the application and the process provides no scope for the airing of allegations of poor behaviour or marital misconduct. As such, the process enables parties to end their marriages in an accessible, dignified and non-adversarial manner which respects their rights to autonomy. The no fault divorce regime in Australia does not invite finger-pointing, cause humiliation or facilitate an increase in hostility which could damage financial negotiations and, more importantly, poison co-parenting relationships. The absence of disputes as to marital fault in the context of divorce applications is also beneficial in terms of the efficient use of court time and resources and the limited cost, both economic and emotional, to the parties. Although disputes between former spouses continue to be played out before the courts in the context of applications concerning financial and parenting matters, these disputes are not exacerbated by fault-based allegations in the context of divorce applications.

No fault divorce was controversial when it was first introduced in Australia and was considered by many to be a radical step. However, its operation has been successful and calls for a return to a fault-based system are now few and far between.

 Anna Parker is an Accredited Family Law Specialist and a Partner at Nicholes Family Lawyers in Melbourne, Australia (www.nicholeslaw.com.au).

2 comments:

  1. Excellent blog Emma and good piece Anna. Regards, William

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