There is often a misconception that where one party believes that the other party is “at fault” for the breakdown of the relationship, then the defaulting party would achieve a less favourable outcome in their family law matter than the non-defaulting party.
This misconception is not the case.
Historically, prior to the Family Law Act being passed in 1975, parties to a marriage were required to prove, in order to get a divorce, that one party had committed a ‘matrimonial offence’ (such as infidelity and insanity) which resulted in the breakdown of the relationship. The ‘fault’ caused by the defaulting party could be used as evidence for the purpose of court proceedings.
However, following the passing of the Family Law Act in 1975, revolutionised the way divorce was handled in Australia by introducing the concept of a no-fault divorce. This means that couples could get divorced without having to prove the fault or blame of either party, thus simplifying the divorce process.
Rather, the concept of a ‘no-fault divorce’ now allows the parties to separate and get a divorce based on proving that the marriage has irretrievably broken down and that the parties have been separated for a minimum of 12 months, without the need to assign any blame or ‘fault’ to either party.
More specifically, to be eligible to get a divorce, the Court needs to be satisfised with the following:
- There is a valid marriage (your marriage certificate is used as evidence
- Your marriage has irretrievably broken down, meaning there is no chance for reconciliation;
- You have been separated for more than 12 months before filing your divorce;
- You are an Australian citizen, permanent resident or, you have been living in Australia for at least 12 months before applying for the divorce; and
- If there are children involved who are under the age of 18, you must prove to the Court that proper arrangements have been made for the child/ren’s care, welfare and development.
The introduction of no-fault divorce in Australia has made it easier for couples to divorce and has shifted the focus away from assigning blame to the breakdown of the marriage. This has had a positive impact on family law matters, promoting a more co-operative and less contentious approach to divorce and separation.
For more information and on advice and no-fault divorces, or for advice after a separation, contact our experienced family lawyers at Meredith Lawyers on 1300 537 306 or admin@meredithlawyers.com.au.
FAQS ON DIVORCE
This means that two people can get a divorce without needing to prove that the other party was ‘at fault’ for the breakdown of the relationship.
To get a divorce, you must provide to the court that that, your marriage is a valid marriage recognised in Australia; you have been separated for a minimum 12 months before applying for a divorce; you’re an Australian Citizen, permanent resident or have been living in Australia for at least 12 months before applying for Divorce; and in the event there are children under 18, that proper care arrangements have been made.
A Court filing fee of $1,100 is payable for filing your divorce.
You may be able to apply for a reduced filing fee of $365 if you meet one of the eligibility criteria, such as holding a pensioners concession card.
Once you have met the requirements to get a divorce, you will then need to complete an Application for Divorce form and electronically submit it to the Court along with other required documents.
The documents you’re required to file will depend on each individual application:
- Marriage certificate – this is required by all applicants in order to prove the validity of your marriage.
- Affidavit for eFiling – this is required by all applicants to certify that the contents of the Divorce Application are true.
- Australian Citizenship Certificate, passport or VISA – If you were not born in Australia, then you will be required to provided evidence of your citizenship certificate or visa paperwork that shows you are living in Australia lawfully. If you are not an Australian citizen, you must prove to the Court that you have been living in Australia lawfully and continuously for at least a minimum of the last 12 months. This is proved by providing a copy of your passport evidencing the date of your arrival to Australia).
- Certificate from a counsellor – you must provide a certificate from a counsellor if you are filing for divorce within two years from the date you got married, or an affidavit in lieu if there’s reasons why you cannot go to counselling.
If you were separated under the one roof, and you are applying for a divorce application on your own, then you must file an Affidavit, together with an Affidavit from an independent third party (e.g. family member or friend) who can corroborate your story.
If you were separated under one roof, and you and your ex-partner are filing a joint application, then you will both be required to file an Affidavit outlining how you were separated under the one roof. If one party is unable to file an Affidavit, then you will be required to obtain one from an independent third party.
Yes. You do not need your spouses consent to file for divorce, as you are able to file a ‘sole divorce application’.
Yes. You can still file for divorce if your spouse is overseas. You will still be required to serve your spouse with the Divorce papers even if they are overseas, which at times can be difficult if you cannot locate them. In these cases, there are alternatives such as requesting that the Court grant an Order to substitute service, permitting you to serve them on another person who will pass the documents to your spouse, or dispense with service all together, meaning you will not have to serve the documents, provided the Court is satisfied that you have made all reasonable attempts to serve your spouse.
