Are you considering a divorce after finding out your husband or wife cheated on you? It’s an unfortunate but common issue that comes with a lot of stress. Thankfully, Australia’s no fault divorce laws can take a little bit of that stress off your shoulders.
So, what does a no fault divorce mean and how does it work? Keep reading to learn all about the family law system surrounding no fault divorces in Australia.
What Is a No Fault Divorce?
No fault divorce laws were introduced in Australia back in 1975.
Before 1975, divorcing in Australia wasn’t so easy. The spouse wanting a divorce had to prove that the other spouse was “at fault” for something to have the divorce approved. Reasons for a fault divorce included adultery, abuse, drunkenness, insanity, or abandonment to name a few things. This burden of proof led to long, drawn-out, expensive court procedures for everybody involved.
The introduction of “no fault divorce” under the Family Law Act 1975 (Cth) allowed an individual to divorce their spouse without a provable reason. The spouse must simply satisfy a Registrar of the Federal Circuit Court of Australia of the requirements for divorce for it to be granted.
Without no fault divorce laws, divorce can get very messy. What’s worse, someone in a bad marriage that can’t prove it has to remain unhappily married to their spouse. This can take a big toll on someone’s life physically, mentally and emotionally.
What Are the Applicable Reasons for a No Fault Divorce?
In Australia, the only reason a spouse needs for a no-fault divorce is a broken marriage.
You may hear broad reasons thrown around for a divorce, such as “irreconcilable differences”, “incompatibility”, or “irremediable marriage issues”. These come with no specific burdens of proof, meaning the spouse does not have to prove abuse, cheating, or anything else under the old fault-divorce laws.
So, if you’ve discovered your spouse is cheating on you, you can rest assured knowing a divorce is possible.
The No Fault Divorce Process
The first thing you should do when seeking a no fault divorce is engaging an experienced family law divorce lawyer. They’ll help you figure out the process in detail and prepare the Application for Divorce.
What if we’re still living together?
Everyone’s situation is different – whilst it is common that one of the parties will move out after they have separated, it is just as common that this is not possible. In such cases, two people may be separated but remain living in the same house.
In some places around the world, such as the USA, a couple needs to be separated/living apart for a year before being applicable for a no fault divorce. However, in Australia, this is not the case.
The couple may still live under one roof before applying for a no fault divorce, it just matters that they’ve been living “separate lives” for twelve (12) months. This is referred to as “separation under one roof”.
Again, this is an intentionally broad statement that could mean a lot of things. Examples of living separate lives can include where the couple has not been communicating, interacting, and acting as they would in a healthy marriage.
Filing the Application for Divorce
Once the Application for Divorce is filed, it needs to be served on the other spouse. The Application cannot be served by the applying spouse themselves. In these circumstances, the applying spouse may ask a family member or friend over the age of 18 years old to hand the Application to the other spouse, or alternatively, engage a process server.
At the time of filing the Application for Divorce, a Divorce Hearing date will be allocated. There are some situations where attendance at the Divorce Hearing is required (such as if there are minor children of the relationship).
Can a No Fault Divorce Be Contested?
An Application for Divorce can be contested by the responding spouse. To successfully contest an Application for Divorce, the responding spouse will be required to satisfy the Registrar that there is a procedural reason for why the divorce should not be granted.
The Registrar is not concerned about the property/financial contributions or disputes during a Divorce Hearing. Such issues can be commenced by way of filing an Initiating Application in the Family Court of Australia or Federal Circuit Court of Australia.
A Registrar only needs to be satisfied that:
- Australia has jurisdiction to deal with the marriage;
- That there was a valid marriage;
- There is an irretrievable breakdown of the marriage;
- That the parties were separated for at least twelve (12) months; and
- That there are proper arrangements in place for minor children of the marriage
For an Application to be contested, the responding spouse will need to establish that one of the above factors is not satisfied.
What About the Children?
As previously mentioned, the Registrar must be satisfied that there are proper arrangements in place for all minor children of the marriage before a divorce is granted.
This includes what the current parenting arrangement is and if the parties intend for it to change in the future. Examples include where the children will live, time spent with each parent, what schools they will attend, whether there are any health issues and whether a party is financially supporting the children (such as child support).
Some form of stable parenting arrangement must be made for any children of the marriage before the no fault divorce proceeds. If the Court finds this hasn’t been done, they will adjourn the divorce until arrangements are made.
Are No Fault Divorces Private?
One of the main reasons no fault divorce was introduced was for privacy’s sake.
What happens in the Federal Circuit Court is not public domain. These cases cannot be reported on unless the judge has given specific permission. In this way, no fault divorces are completely private for every party involved.
Do I Have to Attend the Hearing?
With every divorce there is a hearing that takes place to determine if the divorce goes through. In most cases, you should attend this hearing. However, you don’t always need to – it all comes down to the age of your children.
If you’ve signed a joint Application for Divorce (regardless of the age of your child) neither party is required to attend the hearing. However, if you’ve signed a sole application and have a child under 18, you must attend the hearing. In these circumstances, your family law solicitor may attend and appear on your behalf.
If the spouse being divorced files a Response to Divorce, they must appear at the hearing. In this case, they may be trying to oppose the divorce. They must be present to defend their reasoning and respond.
If you can’t attend the hearing in person, you may be able to attend via phone or video call.
Does the Length of the Marriage Affect my Application for Divorce?
If a couple that wishes to apply for divorce have only been married for less than two (2) years, both parties must first attend marriage counselling in an attempt to reconcile the marriage. The counsellor must sign a certificate proving each party has done this.
If counselling doesn’t help, then you can proceed with the divorce as long as you have proof you completed the counselling.
However, there may be circumstances where it is not possible or safe to attend marriage counselling. For example, there may have been a history of violence or abuse. If this is the case, the applying spouse will be required to file an Affidavit explaining why counselling did not occur prior to filing the Divorce Application.
How Long Do I Have to Wait to Remarry?
You may be seeking a divorce because you want to be with and marry someone else. Regardless, many people wonder how long they have to wait after a divorce to remarry.
You cannot remarry immediately after a divorce is granted on the date of the Divorce Hearing.
The divorce is not final and legal until the Divorce Order is published online, which is one month and one day after the Divorce Hearing. Remarrying before this month is up is considered bigamy, which is illegal under Australian law.
This means that any plans to remarry must be made after the Divorce Order is issued.
Hire an Experienced Divorce Lawyer
If you’ve decided a no fault divorce is the way to go, it’s time to find a reliable and experienced divorce lawyer.
Here at JB Solicitors, we’ll make the divorce proceedings as pain-free as possible. We have fixed-fee pricing for divorce and family law, giving you a clear sense of the cost of your divorce from the start. We’ll help you out every step of the way, from preparing the Divorce Application, filing and serving it, up to the finalisation of your divorce.
With years of experience under our belt, we pride ourselves in making each client’s family law experience as positive as possible.
Contact JB Solicitors today to start your divorce process, or discuss any other family law issues you may have, such as property/financial settlement, parenting issues or Binding Financial Agreements.
