Does Australia have no fault divorce?

What happens when you marry, and then the relationship breaks down and you and/or your spouse is wanting to leave the relationship? Imagine if you had to prove fault on behalf of your spouse to obtain a divorce, and where should the law draw that line?

 

 

 

 

Minor issues:

  • Snoring, consistently late, messy, snoozing the alarm 6 times, talking during tv shows, spits toothpaste into the sink and doesn’t rinse it so it dries there, leaving receipts everywhere, still not knowing where the linen cupboard is, not doing laundry or folding and putting laundry away, spending excessive time playing video games, toilet seat (up or down), loud eater, bad hygiene, food pirating, they put pineapple on pizza…

More serious issues:

  • Rudeness, disinterest, talking over you, being excessively vain, excessively critical, poor health (excessive food consumption, lack of exercise, smoking), insulting you, communication breakdown, regular arguing, not spending time together.

Very serious issues:

  • Wanting different experiences in life (relocation, children, interest), cheating, family violence or abuse.

Luckily, in Australia, we are not required to prove fault to apply for a Divorce, unfortunately, for the English they do have Fault Divorce.

In Australia, if you are married and wish a divorce you are required to fulfil certain criteria, however, unlike ‘Fault’ systems you are not required to provide a series of reasons for what issues were the cause of the breakdown of the marriage.

You are required to sign a declaration that the marriage has “broken down irretrievably”, but this requirement is deemed to have been established if you have been separated for a continuous period of at least 12 months immediately prior to filing an Application for Divorce.

So what is Divorce?

Divorce is the process of legally ending a marriage.

The divorce process is regulated under the Family Law Act 1975 (Cth).

In Australia, divorce is a separate and distinct process from other aspects of ending a relationship, for example parenting arrangements for children and dividing the marital asset pool.

Other Jurisdictions (England & Wales) – Fault Divorce

In England and Wales, to apply for a divorce you have to establish that your marriage has irretrievably broken down for one of the following reasons:

  1. Adultery (being defined as sexual intercourse between a man and a woman, but you must separate within 6 months after learning of the adultery);
  2. Unreasonable behaviour (includes violence, abuse, drunkenness, drug-taking, and refusing to pay for housekeeping;
  3. Desertion (a party has left without agreement, and without good reason for the purpose of ending the relationship and they have been gone for more than 2 years over the previous 2.5 years);
  4. Separated for more than 2 years (and both parties consent to the divorce); or
  5. Separated for at least 5 years (one party consents to the divorce).

Needing to establish a particular reason for divorce is known as Fault Divorce, meaning you must establish fault for ending a relationship. The mere decision that the relationship is no longer working for one or more issues is not of itself enough to justify the legal requirements to obtain a divorce.

Recent Case – Poor Mrs Owens

In 1978, Mrs Owens married Mr Owens. In November 2012, he had an affair, which ended in August 2013 when Mrs Owens learned about the affair. Unfortunately, Mrs Owens was unable to satisfy the requirement for Adultery as she remained living with Mr Owens until February 2015, being greater than 6 months after learning of the adultery.

In May 2015, Mrs Owens filed her application, attempting to satisfy fault on behalf of Mr Owens for the following reasons:

  1. He had prioritised his work over their life at home;
  2. That his treatment of her had lacked love or affection;
  3. That he had often been moody and argumentative;
  4. That he had disparaged her in front of others; and
  5. As a result, Mrs Owens felt unhappy, unappreciated, upset and embarrassed and had over many years grown apart from him.

Mr Owen’s defended the Application for Divorce.

In January 2016 (less than a year after separation), a Judge dismissed Mrs Owens’ application for divorce finding that it was not unreasonable for the wife to live with him on the basis that:

  1. Mrs Owens had significantly exaggerated the context and seriousness of the behaviour of Mr Owens; and
  2. Mrs Owens was more sensitive than most wives.

The trial judge went on to say “I find no behaviour such that the wife cannot reasonably be expected to live with the husband.”

Mrs Owen’s appealed this decision, and in March 2017, her appeal was dismissed. Mrs Owen’s appealed again, this time to the highest court in the United Kingdom being the Supreme Court of the United Kingdom. On 25 July 2018 (3 years 4 months after separation) the Supreme Court also dismissed Mrs Owens’ appeal.

Unfortunately for Mrs Owens, she is required to wait until February 2020 (being 5 years after separation), or obtain Mr Owens consent, if she wishes to divorce.

Jono Messieh BWJonathan Messieh is a Solicitor at our Canberra Office.

By |2018-12-03T16:21:44+00:00August 3rd, 2018|

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