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Getting a Divorce – What About ‘Fault’?

12 July 2016

Divorce raises a lot of emotions – hurt, anger, disappointment.  It’s usually not pleasant – so surely blame and fault should play a big part?

No Fault System

For those that are new to the process, the first – and sometimes ‘shocking’ – discovery is that the Family Law system in Australia is based on a ‘no fault’ system.  The ‘fault’ factors such as, ‘adultery, desertion and cruelty’, have not existed as the basis for divorce in the Australian Family Law system for 40 years!

In Australia, the sole requirement for obtaining a Divorce is that the marriage has ‘broken down irretrievably’.  This is evidenced by the married couple having been separated for a period of no less than 12 months.

UK and USA have retained reference to ‘fault’

Some of the confusion comes from the fact that the UK and USA have retained some reference to ‘fault’ in their divorce proceedings and with modern media we are often exposed to the law in some of these countries. In the United Kingdom, some consideration is still had to the reason for a divorce. Although the only ground for a divorce in the UK is that the marriage has ‘irretrievably broken down’ (the same in Australia). Some of the reasons for this include ‘adultery, unreasonable behaviour, two years separation with consent of the other party to the divorce or five years separation without consent of the other party to the divorce’.

In the USA, States vary between ‘fault’ or ‘no fault’ divorce. For a ‘no fault’ divorce, a spouse must prove that the relationship has ‘broken down irretrievably’ or there are ‘irreconcilable differences’. To obtain a ‘fault’ divorce, one spouse must show that the other spouse was to blame for the ending of the marriage through, for example, adultery, cruelty, mental illness or a criminal conviction. Some States also allow grounds such as, drug use or religious reasons.

In practice in the USA, regardless of the reason for the separation, a spouse will usually apply for a ‘no fault’ divorce. The cost, stress and emotional strain of having to prove to a Court that your spouse, for example, had an affair, deters most parties from taking this route.

Australia – dissolution of the marriage

It is important to note that a Divorce in Australia is a separate Application that results in the dissolution of the marriage.  It does not have any impact on parenting arrangements or financial issues.

So, what about property division then? If a spouse has been unfaithful – surely that should provide for greater entitlement. No – ‘fault’ plays no part there either. The only relevance that behaviour plays is in the context of how property is dealt with, whether it’s wasted or improved.

If you have separated or might be about to we encourage you to contact us for your own advice. Phone (07) 3221 4300 for a fixed-cost no obligation appointment with a family law expert. We can meet with you in person, by phone or by Skype.

2019-04-23T14:45:12+10:00

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