Australian Divorce Law

A short history of Australian Divorce Law since 1959

It was in 1975 that no fault divorce was introduced into Family Law. Before then the Martimonial Causes Act 1959 provided grounds for divorce which included adultery, cruely and insanity. all of which had to be proven.

 

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The Matrimonial Causes Act 1959 provided 14 grounds for the dissolution of marriage (divorce), including adultery, desertion, cruelty, habitual drunkeness and insanity, all of which had to be proven by a spouse. Obtaining proof often required hiring a solicitor and/or a private detective, and evidence such as photographs and hotel receipts were required. There was only one 'no-fault' ground and that was if the couple were separated for more than 5 years.  The system was designed to permit genuinely injured spouses to end their marriages, but it was also intended to protect the institution of marriage. The law did not permit couples to consent to a divorce. Some couples conspired to end their marriages by divorce by fabricating evidence to prove one of the grounds. In most cases, a spouse could not bring proceedings for divorce unless the parties had been married for at least 3 years. In 1975, desertion, adultery, separation and cruelty accounted for 94 per cent of the 24,257 divorces granted.

 

No-fault Divorce:

Since the commencement of the Family Law Act 1975, the sole ground for divorce is that the marriage has broken down irretrievably. The requirment for this was for one spouse to prove that the parties have separated and thereafter lived apart for a continuous period of 12 months before filing the divorce application. The then Attorney- General, Lionel Murphy,  argued to Cabinet that one of his aims in proposing this reform was to make divorce less cumbersome and much less expensive.

Today, obtaining a divorce is an administrative exercise for most couples. It is a matter of filling in an application form and paying a filing fee. Lawyers are not required. Where there is no child under 18 yeard or the parties make a joint application, the couple does not have to go to court. Where there is a child under 18 years, the court cannot grant a divorce unless it is satisfied that proper arrangements have been made for the care, welfare and development of the child. 

 

The current system of no - fault divorce is simpler than the fault system which existed pre 1975, and is designed to alleviate the expense and some of the angst from the end of some marriages. And most importantly, it considers the children and requires both parties to make post separation parenting arrangements so that the children can continue to have a relationship with both parents, whenever possible.