The concept of ‘no-fault divorce’ in Australia
With the establishment of the Family Law Act 1975, the concept of no-fault divorce was introduced for the first time in Australia. It is no longer necessary to show wrongdoing on the part of one party to the marriage and the Court is no longer concerned with the reasons for the breakdown of a marriage. The only criteria necessary for a valid application for divorce is for parties to establish that there has been an irretrievable breakdown of marriage, evidenced by a twelve-month separation preceding the filing of an Application for Divorce.
Benefits of the no-fault divorce concept
This concept was introduced to reduce conflict and minimise hostility between the parties, to simplify the process and to make divorce more cost effective for parties’.
Fault elements such as domestic violence may still be important when it comes to parenting arrangements.
How to file an application for Divorce in Australia
Along with a whole host of changes arising from the COVID-19 pandemic, all applications for divorce can now only be filed electronically.
An application for divorce can be a sole application or a joint application.
Service of the Application for Divorce
In a sole application for divorce, the Applicant must serve the Respondent with the application for divorce and supporting documents. The Court must be satisfied that the Respondent is aware of the application and has had an opportunity to respond to the application. If the Respondent resides in Australia, the Respondent must be served all documents at least 28 days before the hearing day. If the respondent does not reside in Australia, the Respondent must be served the documents at least 42 days before the hearing.
Ground to oppose a Divorce
There are very limited grounds to oppose a divorce. Given that the basis for a divorce is the irretrievable breakdown of marriage, the only way to oppose an application for divorce is to establish that the marriage has not broken down. You must prove either that you have not yet been separated for twelve months or that there is a chance you will get back together.
Separation Under One Roof
If you have been separated but living under the same roof, which is often due to financial reasons, you will need to prove to the court that the separation is genuine and that it has been for at least 12 months. In this case, you will have to provide extra information to the Court as proof of the separation.
If there are children of the marriage who are under the age of 18 years, the court will only make an order for divorce once satisfied that proper arrangements have been made for the care and welfare of the children. These arrangements do not have to be formalised pursuant to a parenting plan or parenting orders. The arrangements can be pursuant to an informal arrangement.
Attendance at Divorce Hearing
- For a joint application – attendance is not required;
- For a sole application if there are no children of the marriage – attendance is not required;
- For a sole application if there are children of the marriage under the ages of 18 years – attendance is required.
In the following circumstances, attendance is recommended:
- separation under the same roof
- married for less than two years, or
- if there has been a change in circumstances since the Application was filed
- when the Respondent files a Response
When will the divorce order take effect?
A divorce order becomes final and takes effect one month and one day after the date the Order is made.