The principle of irretrievable breaking down of a marriage as the only ground for divorce in Australia
Legal experts suggest that the laws that regulate marriage breakdown are subject to constant and substantial changes. Thus, the Family Law Act 1975 came into effect in January 1976, as a result of a protracted debate.[1] The Act repealed the Matrimonial Causes Act 1961, which had rested on fault as the ground for divorce.[2] The court used to consider the spouses as either guilty or innocent of matrimonial misconduct, such as cruelty, adultery and desertion (abandonment). It was incumbent on the applicants to prove that the other party had committed a matrimonial offence in order to succeed in the proceedings. Failure to prove the case would usually result in a court’s refusal to grant the divorce.
In the framework of the old system, the allocation of fault concerned such legal issues as property, spousal maintenance and child custody, while a ‘guilty’ spouse could be punished by being denied contact with his or her children, or losing an entitlement to be financially supported by the other spouse. When the new Family Law Act came into effect in 1975, the number of divorces significantly increased. This is largely because the new legislation enabled a much easier no fault proceeding of divorce. However, the rapid increase in divorce numbers ignited vivid debates on whether the introduction of no fault divorce had degraded the institution of marriage by way of fostering marriage breakdown.
Legislative tenets of no fault divorce in Australia
As a matter of Australian law, marriage and divorce are both subject to federal regulation. Thus, the Australian Constitution clearly prescribes that the federal law governs all matrimonial causes of action, such as marriage and divorce, as well as all cases involving parental rights and the custody and guardianship of infants. To that end, the key legislation regulating marriage and divorce in Australia include the Family Law Act and Marriage Act.[3] The salient features of the Family Law Act 1975 as the legal framework for no fault divorce are the following. First and foremost, the Act defined irretrievable breakdown of marriage as the sole and only ground for divorce and thus adopted the no fault doctrine of dissolution of marriage in Australia. Second, the Act established the Family Court of Australia to handle disputes between married individuals, as well as between the parents of dependent children. Third, the Act constitutes the only legal framework for settling disputes involving financial issues and children. Fourth, the Act sets forth legal safeguards that protect family members in cases of domestic violence.
As far as the problem of no fault divorce is concerned, the Family Law Act regulates that the legal fact of irretrievable breakdown of marriage can be proved by the couple having resided in separate abodes for at least twelve months, after which either party to the divorce proceeding may trigger a divorce irrespective of whether the other party consents to divorce. There is no doubt that a variety of decisions to bring an end to a marriage are rendered by one party to the marriage only. Under the Family Law Act, the no fault principle of divorce implies that no party must be found guilty of marital misconduct in order to enable the other party’s right to initiate a divorce. In view of the above, most cases of divorce in Australia are brief and almost impossible to oppose, though a divorce will never be granted if the court decides that there is a reasonable probability of the couple’s reconciliation. In addition to this, divorce may be granted by the court ex parte if the couple does not have children under 18 years. Notwithstanding the easiness of divorce as a no fault proceeding under Australian law, there may be two types of complications for the judge deciding divorce cases: a) if spouses still reside in the same house for a portion of the 12-month period; and b) if there is a history of recurrent separations and reconciliations. In the context of the first type of difficulties, the court will seek satisfaction that the marriage has in fact discontinued, whereas in the second example, when spouses have separated multiple times, the Act regulates that if they have reconciled for less than three months during the 12-month separation period, their divorce application may still go on. An extra short reconciliation that the court deems to be minor will also not prevent the divorce application moving forward should they later consent to divorce. The last but not least, it needs to be pointed out that marriage in Australia are not legally discontinued on the day of the divorce hearing. As a matter of Australian law, a decree nisi can be granted following later by a decree absolute. Once the degree absolute is granted, the former spouses are free to remarry.
[1] Family Law Act 1975.
[2] Matrimonial Causes Act 1961.
[3] Marriage Act 1961.