A marriage can break down for any number of reasons. Sometimes a party to a marriage breakdown will feel strongly that the other party is at fault. Maybe that party had an affair, gambled away the family’s fortunes or abused drugs and alcohol. In these circumstances it is not uncommon for a party to believe that they will be entitled to a “better deal” when it comes to a property settlement or the care arrangements for children. The fact that the court may not want to hear allegations about “the other woman” or “they were cheating behind your back” can be upsetting and frustrating for a party who wants recognition for not being responsible for the marriage breakdown.
Since the passing of the Family Law Act 1975 however Australia abolished the requirement to establish that one party is at fault and introduced the “no-fault” divorce. This means the court will not make a determination about a party being at-fault for the marriage breakdown. The intended purpose of the no-fault divorce was to encourage mediation and a less hostile environment with allegations of bad behavior slowing down the divorce processes.
The sole ground for divorce since the introduction of the Act is the “irretrievable breakdown” of the relationship, demonstrated by a period of 12 months separation.
This is not to say that when the court is making decisions about parenting arrangements that a history of mental health issues, domestic and family violence and drug and alcohol abuse will not be taken into account. The court will take these issues into consideration to ensure the best interests of the children.
Critics of the no-fault divorce argue that it has “weakened the institution of marriage” and provides for an easy “out” from the bonds of marriage and rewards “irresponsible behavior”.
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