No Fault Divorce

In NSW, divorce is governed by the federal law; specifically, the Family Law Act. The legislation that was enacted in 1975 introduced a “no fault divorce” system.

Proceedings for a divorce (or a Divorce Application), formerly known as “dissolution of marriage” or “decree nisi for dissolution of marriage”, is considered to be a “matrimonial cause” as defined in section 4 of the Act. As such, the Act, with some exceptions, treats all proceedings in a “matrimonial cause” as independent proceedings which can be instituted regardless of whether proceedings for principal relief are concurrent, pending, or completed. This means that it is not necessary for a party to obtain a divorce before seeking Orders relating to child custody or property settlement or spousal maintenance. Likewise, applications for child custody and/or property settlement and/or spousal maintenance can be made whether or not either party is seeking or has obtained a divorce. Under the previous legislation, the Matrimonial Causes Act 1959, such applications could not be brought until divorce proceedings or proceedings for annulment of marriage had been commenced.

A “no fault” jurisdiction applies to divorces. Applications for Orders relating to child custody or financial matters are not affected by the fact that a divorce has been granted. Under the old law, divorce was based on “fault” grounds such as adultery or cruelty, and a ground proving one party’s “fault” needed to be established before a divorce could be granted, Furthermore, divorce proceedings could affect the outcome of proceedings for child custody, property settlement, and spousal maintenance. For example, a husband who obtained a divorce on the ground of his wife’s adultery might have expected to pay her less maintenance than he would be ordered to pay if she had obtained the divorce against him. Under the current law, such questions are not affected by whether a divorce was granted, or who obtained it.

Under the old law, divorces were often bitterly fought. This is rare under the present law, for several reasons. Firstly, since 1975, there is only one ground for divorce: that the marriage has broken down irretrievably. The question of fault is irrelevant to the granting of a divorce. Rather, the single ground that the marriage has broken down irretrievably is effectively established by twelve months’ separation. Where the separation date is disputed by the parties, evidence of separation will need to be provided; however, once separation has been established nothing else needs to be proved to establish the ground or irretrievable breakdown. Secondly, provided that the legal requirements have been established (see article: How to Get a Divorce), there is little room to contest a divorce. Finally, the granting of a divorce is irrelevant to the resolution of questions relating to child custody, property settlement and spousal maintenance, making the process shorter than litigated child custody or property settlement matters.

If you need assistance or representation for a Divorce Application, contact your nearest Prime Lawyers office to speak with one of our divorce lawyers today.