We often see social news stories from back home where one spouse has been unfaithful, and the wronged party typically goes to great lengths to gather evidence in order to prove to the court that the other party was at fault in the marriage. Scenes like the wife catching the mistress with a video camera in hand, or hiring a private investigator to collect evidence — most of us have seen or heard of such storylines.

However, in Australia, there is no such concept as an “at-fault party“. Australia follows the principle of ”no-fault divorce“, which means that regardless of whether one spouse has been unfaithful, the other party does not need to prove this to the court, because there is only one ground for divorce in Australia:

The marriage has broken down irretrievably.

In simple terms:

– In fact, the parties must have been separated for at least 12 months;

– Emotionally, there is no reasonable likelihood of reconciliation between the parties

Since 1975, divorce in Australia has been based on the “no-fault” principle. This means that the party applying for divorce does not need to prove “fault” on the part of the other party. Under the no-fault divorce system, a divorce application can be made by either party. Alternatively, the spouses may apply for divorce jointly. Once the application is made, the applicant must demonstrate that the marriage has broken down irretrievably. This requires that the parties have been separated for at least 12 months and that there is no reasonable likelihood of reconciliation.

In certain circumstances, even if the parties are still living in the same house, so long as they sleep in separate rooms, are financially independent of each other, do not eat together, do not attend social activities together, and so on, they can be recognised as “separated under one roof”.

NS Legal Did You Know

Before 1975, divorce was much harder to obtain. Dissolution of a marriage was treated as a matter of contract law, and divorce required proving that the other party was responsible for the breakdown of the relationship. The “fault” had to amount to serious misconduct. At the time there were 14 grounds for divorce, including adultery, desertion, cruelty, insanity and habitual drunkenness, among others. Divorce applications were often contested, and the parties would engage lawyers or private investigators to gather evidence. As a result, pursuing divorce proceedings was extremely expensive and, for many, was not a financially viable option. Collusion between the parties and the fabrication of evidence of fault were also common.

The Whitlam government amended the law in 1975 to reflect changing social attitudes towards relationships. The resulting “no-fault divorce“ system has remained in place to this day. Under this system, the court does not consider who was at fault in the breakdown of the marriage. It is now accepted that a relationship may end for all sorts of reasons, which may or may not involve fault on the part of one or both parties. Under current family law, marriage is a matter for two people and requires joint effort, so the court cannot treat either spouse as being at fault for the breakdown of the marriage, and both parties are entitled to end the marriage when they see fit.

Before 1975, applying for divorce required one party to establish “fault” arising in the marriage. Accordingly, in the property-settlement process that fault would count in favour of the non-offending party, because one spouse had breached the marriage vows. However, under the current no-fault divorce system, property settlement and parenting arrangements fall into a separate category and are not dealt with together with the divorce. In other words, who applies for divorce and the outcome of the divorce do not affect decisions about property settlement or the care of the children.

In the rare case of family violence, the court will take the family violence into account when considering property settlement. Such cases are not common, because the court will only factor in family violence where it has been severe enough to significantly diminish the victim’s contribution to the family. This is the well-known Kennon Principle.

When considering parenting arrangements, the court will first consider what arrangement is in the best interests of the child. Previously, behaviour such as alcoholism or perpetrating family violence would be regarded as “fault” in the marriage. The court might then permit the offending party to spend less time with the child. Today, however, the court leans more towards deciding what arrangement is best for the child, rather than determining parenting arrangements based on the fault of one or both parents.

Overall, the ”no-fault divorce“ principle marks a significant difference between divorce in China and Australia. Whether in terms of reducing perjury in divorce proceedings or the impact on the children, it is a relatively more objective approach. Of course, judicial practice still involves certain facts that are difficult to establish, such as the precise calculation of the period of “separation under one roof”, or situations where one party deliberately delays the proceedings, thereby causing financial and emotional loss to the applicant. In these circumstances, it is necessary to seek the assistance of a professional legal team to ensure the application proceeds smoothly.