Celebrating 40 Years of No-Fault Divorce
Posted: 27th January 2015
Posted in: News
Posted by: Dean Evans, Partner
It has been 40 years since the enactment of the Family Law Act 1975 and over the course of this year I will be having a look at the life of the Act, the demise of its predecessor, the Matrimonial Causes Act 1959, and calls by various sectors of the public for the reimplementation of a “fault system”.
The primary difference between the current Family Law Act and the repealed Matrimonial Causes Act is that the former is a “no-Fault” system of divorce whereas the latter is a “Fault” system. At its most basic, a “Fault” system of divorce means that only the spouse who did not engage in the misconduct could apply for a divorce, and it would be open to the court to award a more favourable property settlement to that spouse. The misconduct referred to could mean adultery (cheating), family violence and desertion.
As a Gold Coast Accredited Specialist in family law, I regularly meet with clients whom have recently separated and am told the reason for the relationship breakdown. Often the basis for the relationship ending falls into what I have described above as being “misconduct”. Despite it being 4 decades since the start of a no-fault system of family law in Australia, these clients are surprised when I advise them that the circumstances of the relationship breakdown does not have any impact on their entitlements to financial settlement.
Whether Australia should revert back to a fault system of divorce is still, 40 years on, a richly emotional and polarising debate which is no doubt influenced by people’s own relationship experiences.
Stay tuned as in future months, I will cover:-
- What was life like for a family law Solicitor prior to the Family Law Act and what were the reasons for the then government deciding to end the fault system of family law;
- Has the decision to implement a no-fault system of law perpetuated family violence in Australia and has the current Prime Minister called for the reintroduction of a fault system of law relating to divorce; and
- Which Countries still operate under a system of divorce law which from an Australian perspective is prehistoric and does it work.