No fault divorce

No fault divorce has been a mainstay of divorce in Australia since 1975, when the the Family Law Act 1975 (Cth) was introduced. While separating will never be easy, can you

Imagine that you have been married for nearly 35 years – and that you are seeking a divorce because you believe your partner has:

  • prioritised their work over their life at home;
  • that their treatment of you had lacked love or affection;
  • that they had often been moody and argumentative; and
  • that they had disparaged her in front of others.

Consequently, you feel unhappy, unappreciated, upset and embarrassed and had over years of ups and downs, you’ve decided you can’t continue in the marriage and want to leave.

Now imagine that you tell a Court all of this; and your partner of nearly 35 years denies the allegations, claims that the marriage was and is successful and that you both have learned how to “rub along”. The Court then denies your divorce application, on the basis that your reasons for divorce are “at best flimsy” and that your partner was “some-what old-school”.

It doesn’t bear thinking about being stuck in a marriage you don’t want to be in –and even more so if there are more serious issues involved such as family violence or extra-marital relationships but which cannot be proven in Court.

You may be surprised that this was the state of the law in England and Wales until 6 April 2022 – and was the reality of Ms Owens, who despite expanding her list of complaints about her marriage to 27 different issues, was refused permission by the Court to divorce her Husband because her reasons did not demonstrate that the marriage had irretrievably broken down.

On 6 April 2022 the Divorce, Dissolution and Separation Act 2020 (UK) removed the requirement to prove to the Court what one Judge called the ‘five ancient bases of divorce’;[1] being adultery, unreasonable behaviour, desertion (after two years), living apart for at least two years (and both parties’ consent) and living apart for at least five years (without consent).

Removing the requirement to prove through one of these factual grounds that the marriage had irretrievably broken down has modernised the laws of England and Wales – and although it does perhaps highlight shifting social attitudes to the concept of marriage, we think it is a welcome change. Since separation is already an emotional and distressing time in a person’s life, having to justify a decision to leave a marriage, or needing to place blame on the other party to justify a choice to separate doesn’t assist in the process or prevent heartache. The removal of the need to prove ‘fault’ also overcomes an unnecessary area of uncertainty after a break-up.

Now, like here in Australia, couples in England and Wales must serve a compulsory period of physical separation before they qualify to apply for a divorce. No longer do they need to provide ‘reasons’ to demonstrate an irretrievable breakdown of the marriage. Here in Australia, you can get a divorce if you have been separated for a period of 12 months and one day, before you can apply to the Court for a divorce. You and ex-spouse can be living separated under the same roof for all or part of this time, although you do need to file evidence to show there has been a change to the marriage.

You may be eligible to apply for divorce in Australia if you were married in England or Wales. To do this, either you or your spouse must be a citizen and present in Australia for at least a year before you apply.

If you’re contemplating a divorce, including where you and your spouse have lived or married overseas, our family law experts can assist you to navigate where and when to file your divorce application – plus guide you through other important decisions that are made following a marriage breakdown. Our family law experts have experience in international family law matters and Founding Director, Debra Parker, is a member of the International Academy of Family Lawyers.

[1] Smith v Smith [2009] EWCA Civ 1297 (02 December 2009) ( [15]