The Family Law Act and no fault divorce

2016 marks the 40th anniversary of the Family Law Act 1975 and creation of the Family Court of Australia. As discussed below, some the greatest and most revolutionary changes were enacted in this legislation, making the law more accessible and user friendly to those who need it most. 

Did you know:

Prior to the introduction of the Family Law Act 1975 a divorce could only be obtained if one party was able to prove the other party was at fault for the breakdown of the relationship. The party seeking the divorce also had to prove they were not at fault.

Some of the grounds of ‘fault’ included:

  • That adultery had been committed.
  • That a party was of unsound mind.
  • Persistent refusal to have sexual intercourse.
  • Habitual drunkenness of use of illicit substances (over a period of at least two years).
  • Conviction of an offence punishable by five years or more in prison.
  • Being absent for a period of time and in circumstances to be presumed dead.
  • Conviction of attempting murder within the year prior to the breakdown of the marriage.
  • Desertion of a party of at least two years without excuse.

The divorce process was also heard in a public forum, which led to (in most circumstances) the accused spouse being publicly humiliated during the process. This resulted in many divorce proceedings being opposed by the accused party, who had to defend their character.

To prove a ground of fault, the party seeking the divorce had to hire a private detective and/or solicitor to collect the evidence against their spouse. This led to the divorce process being expensive which in turn limited its accessibility to lower income earning families.  Overall, the system failed in providing accessible justice to those who required it and resulted in many couples remaining in unhappy and sometimes abusive relationships because they could not prove fault or afford the process.

Finally, to obtain the divorce the parties also had to be separated for a period of at least three years. If the divorce was then granted, it took three months to receive the decree absolute (final divorce order).

The Family Law Act Shake Up

The Family Law Act 1975 abolished the above grounds establishing a ‘no fault divorce’ system in Australia. The legislation instead contained one ground for divorce which is found at section 48(1) of the Act. This section reads:

  • An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.

In order for the Court to establish that a relationship has broken down irretrievably, it must be satisfied that the parties to the marriage have separated and lived separately and apart for a continuous period of at least one year (which is a reduction of the previous three year separation period).

The new legislation also reduced the period of time it took to receive the decree absolute down to one month.

The effect of the new legislation is that the divorce process has become more accessible and affordable for parties seeking to separate.

Of course, the divorce itself does not deal with property or parenting matters on a final basis. If you are currently separated or looking to separate from your partner you should contact us for advice about the process.

Natasha_propNatasha Priestly is a family lawyer at Farrar Gesini Dunn

By |2017-12-19T14:42:48+00:00March 4th, 2016|

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