Australia has a ‘no-fault’ divorce system, which means that the Court does not consider who was responsible for the breakdown of the marriage.
Unlike the old blame-based system where one spouse had to prove wrongdoing, divorce in Australia is now based solely on the fact that the marriage has irretrievably broken down.
But what does this mean, and how can you ensure your application meets the legal requirements?
Let’s break it down.
What Is the ‘No-Fault’ Divorce Principle in Australia?
Since the introduction of the Family Law Act 1975, Australia has recognised that holding one party responsible for the end of a marriage only complicates an already challenging situation. Under this legislation, the only ground for a divorce order is that the marriage broke down irretrievably, and there is no reasonable chance of reconciliation.
The Court only requires evidence that you and your spouse have been separated for at least 12 months. However, if you and your spouse have only been married for under 2 years, you are required to attend counselling and obtain a counselling certificate before applying for a divorce.
The Federal Circuit and Family Court of Australia (the Court) is responsible for handling divorce matters under the act. However, it’s important to note that a divorce application only addresses the legal dissolution of the marriage. It does not settle financial support, property settlement, or parenting arrangements—these are separate legal matters that need to be addressed either by agreement or through court orders.
A Brief History of ‘No-Fault’ Divorce
Before the introduction of the Family Law Act 1975, divorce in Australia was based on a blame-focused model. Grounds for divorce included adultery, cruelty, habitual drunkenness, desertion, and imprisonment. To prove these grounds, spouses often resorted to hiring private investigators or fabricating evidence, making the entire process stressful, expensive, and emotionally damaging.
The introduction of no-fault divorce aimed to simplify the legal process and reduce hostility between separating couples. It also established the Family Court of Australia, which was designed to provide legal solutions and counselling services for families.
Today, Australia’s divorce system focuses on reducing conflict and allowing couples to separate with dignity and fairness.
How to Prove Your Marriage Has Broken Down Irretrievably
To satisfy the Court that your marriage has ended with no reasonable chance of getting back together, you must meet specific criteria, including:
12-Month Separation Requirement
You and your spouse must have lived separately and apart for a continuous period of at least 12 months.
Living Under the Same Roof
It’s possible to be considered separated even if you still live in the same household. However, you’ll need to provide additional evidence through affidavits explaining the nature of the separation.
Attempts at Reconciliation
Brief attempts to reconcile are allowed (up to three months) as long as they do not exceed the 3-month period within the 12-month separation period.
Importance of Getting Legal Advice for Your Divorce
Divorce is a devastating process, but you can have a helping hand to get you through the rough.
At Gryphon Lawyers, our experienced family lawyers are here to provide practical and compassionate to help you achieve the best possible outcome for your matter.
Contact us today for a confidential consultation, and let’s help you find a brighter path forward.
