What does a 'no-fault' divorce mean?

Date: Mar 13, 2015

Modern divorces are processed in Australia under the principle that they are a 'no-fault' divorce - a consideration that has been a part of Australia's legal framework since the Family Law Act 1975 came into effect.

The principle of a no-fault divorce means that individuals will not need to prove that either party is primarily responsible for the breakdown of a relationship. This means the courts will not consider whether one party was at fault when determining if a divorce can be allowed.

Instead, divorces in Australia will only be granted if the courts are satisfied that the relationship between two parties has irretrievably broken down. This will require the couple to separate for a period of 12 months before lodging this application.

The courts must be satisfied that this period of time has passed and that the pair have not resumed their relationship for any longer than three months. If this does occur, the couple will have to separate again for a full 12 months before the courts will consider granting a divorce.

While the most common solution for those seeking a divorce is to physically separate, divorcing couples do have the option of cohabiting during the 12 month timeframe. Although this can occur, couples will face a higher burden of proof when it comes to demonstrating their relationship has ended.

What's more, the courts can only grant a divorce order if they are satisfied that proper provisions have been made for any children of the relationship. If individuals have not provided for their children, the granting of a divorce order may be delayed until this issue has been resolved.

Applicants may also be required to seek parenting orders at this time, so that there is a concrete plan in place to cover the care of any children once divorce orders are granted by the courts.

Finally, special conditions will apply in the event a couple have been together for less than two years at the time they apply for a divorce. In this situation, applicants will be required to attend counselling prior to the divorce proceedings in order to explore the possibility of reconciliation. This is essential for couples to prove they meet the conditions that accompany a no-fault divorce.

For more on the process of separating from a partner and the principles involved in a no-fault divorce, make sure to consult with a divorce lawyer.