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| by Anna Parker Nicholes Family Law, Melbourne, Australia |
In the context of the ongoing debate about
the introduction of no fault divorce, it may be instructive to reflect on the
experience in Australia, where a no fault divorce system, with similarities to
that presently before the House of Commons, has been operating successfully for
many years.
Australia has had no fault divorce since
the commencement of its Family Law Act
1975 on 5 January 1976. The sole ground for divorce in Australia is that
the marriage has broken down irretrievably. That ground can be established if,
and only if, the court hearing the application for a divorce order is satisfied
that the parties separated and thereafter lived separately and apart for a
continuous period of not less than 12 months immediately preceding the date of
the filing of the application. Either party to the marriage can unilaterally
bring about a separation.
The granting of a divorce order is almost
automatic upon an application being made following 12 months’ separation,
subject to a small number of exceptions, including that the court will not make
a divorce order if it is satisfied that there is a reasonable likelihood of
cohabitation being resumed, and a requirement that the court consider whether proper
arrangements in all the circumstances have been made for the care, welfare and
development of any children of the marriage who have not attained the age of 18
years.
An application for divorce may be made by
one party to the marriage or by both parties jointly. Where a sole application
is made, it is necessary to prove that the application has been served on the
other party, but that party need not participate. Divorce applications are
dealt with by way of a short, largely administrative court hearing. Where there
are no children under the age of 18 or where a joint application is made, a
court appearance is generally not required at all.
There is no role for fault-based
allegations in divorce applications in Australia. Conduct is not legally
relevant to the application and the process provides no scope for the airing of
allegations of poor behaviour or marital misconduct. As such, the process
enables parties to end their marriages in an accessible, dignified and
non-adversarial manner which respects their rights to autonomy. The no fault
divorce regime in Australia does not invite finger-pointing, cause humiliation
or facilitate an increase in hostility which could damage financial
negotiations and, more importantly, poison co-parenting relationships. The
absence of disputes as to marital fault in the context of divorce applications
is also beneficial in terms of the efficient use of court time and resources
and the limited cost, both economic and emotional, to the parties. Although
disputes between former spouses continue to be played out before the courts in
the context of applications concerning financial and parenting matters, these
disputes are not exacerbated by fault-based allegations in the context of
divorce applications.
No fault divorce was controversial when it
was first introduced in Australia and was considered by many to be a radical
step. However, its operation has been successful and calls for a return to a
fault-based system are now few and far between.
Anna
Parker is an Accredited Family Law Specialist and a Partner at Nicholes Family
Lawyers in Melbourne, Australia (www.nicholeslaw.com.au).
