Home > News > No fault divorce and the Family Court of Australia – Four decades on

No fault divorce and the Family Court of Australia – Four decades on

Spread the love

Gough Whitlam’s recent passing has given Australians cause to pause and reflect upon the foundation of the Family Court and implementation of no fault divorce legislation, both in established by the Whitlam government in 1975.

Prior to 1975, Australian couples were bound together by a system of fault based divorce.  In order to secure a divorce one partner needed to prove to the court that the other had been cruel, deserted them and/or committed adultery.  If fault was proven a divorce was usually granted together with a more favourable property settlement to the other party.  Court proceedings were lengthy and costly. In Victoria, litigation took place in the Supreme Court and formed part of the public record which the media and interested parties could access with minimal restraint.

Since 1975 parties have been able to secure a dissolution of marriage upon proving a 12 months separation and that the marriage has irretrievably broken down.   Property settlements are determined by the Court quite separately without reference to fault. 

All family law proceedings are now conducted either in the Family Court or, since 2001, the Federal Circuit Court in an Australia wide system.  The law prevents publishing cases in the public domain unless authorized by the Judge hearing the case.  Separation has become a more private affair.

Today’s Family Law Act looks quite different to that passed and adopted in 1975.  As our society and values have evolved so has the role of the Family Court.  The Court now has power to  adjudicate disputes between separated de facto couples and the Family Law Act makes provision for parties to enter into prenuptial contracts otherwise known as “financial agreements.”  

Separated parties are now usually required to try resolving their child related disputes by undertaking family dispute resolution before instigating proceedings.   The Family Law Rules require parties to financial litigation to attempt to mediate their disputes before reaching a trial.

Perhaps controversially, not all agree that no fault divorce has been a positive step for Australian society. Legal theorist Augusto Zimmermann challenges the Australian public with his view that ultimately, “no-fault-divorce undermines justice as it rewards irresponsible behaviour and makes a complete mockery of marital vows. Perhaps those who are marrying should consider declaring at their wedding ceremonies, “I promise you nothing”, or “I will leave you whenever I want””.  (“The innocent Victims of Family Law, News Weekly, 1 March 2014)

The changes to family law dating back to 1975 have however been lauded by many as liberating for all married parties, in particular women, from what was considered to be the trappings of the institution of marriage. 

For any queries relating to legal issues arising out of de facto relationships and marriage, please contact our Family law team at MST Lawyers on 03 8540 0200.