No-fault divorce is a legal process that allows married couples to end their marriage without having to prove that one party was at fault.
In Australia, this means that neither spouse needs to show wrongdoing, such as adultery or abuse, to obtain a divorce.
Instead, the only legal requirement is to demonstrate that the marriage has irretrievably broken down, proven by a 12-month separation period.
This system was introduced under the Family Law Act 1975 to make divorce less confrontational and more focused on resolving practical matters like property settlement and child custody.
By removing the need to assign blame, no-fault divorce encourages a smoother and more cooperative legal process.
How Do I Prove Irretrievable Breakdown in a No-Fault Divorce?
To prove an irretrievable breakdown of the marriage, the couple must show that they have been separated for at least 12 months and one day.
This separation period demonstrates that the relationship cannot be repaired.
Separation does not always mean living in different homes. A couple can still be legally separated while living under the same roof, but they must show that they are no longer acting as a married couple.
Evidence of separation under one roof may include:
- Sleeping in separate rooms
- Having no shared finances
- Not doing household duties for each other
- Telling friends and family about the separation
If a couple gets back together for a short time (less than three months) and then separates again, the separation periods before and after the reconciliation can be combined.
However, if they live together for more than three months, the 12-month separation period must start over.
What Are the Legal Requirements for Filing a No-Fault Divorce?
To file for a no-fault divorce in Australia, the following legal requirements must be met:
1. Eligibility
At least one spouse must:
- Be an Australian citizen, or
- Have lived in Australia for at least 12 months, or
- Consider Australia their permanent home.
2. Separation Period
The couple must be separated for at least 12 months and one day before applying for divorce.
3. Length of Marriage
If the marriage lasted less than two years, the couple must attend family counselling before applying for a divorce.
The purpose of counselling is to confirm that all efforts to save the marriage have been made. If counselling is not possible, the applicant must file a special affidavit explaining why.
4. Divorce Application
A divorce application can be made:
- Jointly (both spouses apply together) or
- Solely (one spouse applies, and the other is served with the application).
- The application is filed through the Federal Circuit and Family Court of Australia (FCFCOA) and requires a filing fee, which may be reduced for those experiencing financial hardship.
Does No-Fault Divorce Affect Property Settlement and Child Custody?
Divorce itself does not determine property division or child custody. These are separate legal matters that must be settled independently.
1. Property Settlement
Property settlement involves dividing assets, debts, and financial resources. It is not automatic after divorce and must be resolved through negotiation, mediation, or court proceedings.
The court considers factors such as:
- Financial contributions made by each spouse
- Non-financial contributions (e.g., homemaking and childcare)
- Future needs (e.g., earning capacity, health conditions, caregiving responsibilities)
- A property settlement must be finalised within 12 months of the divorce being granted.
2. Child Custody and Parenting Arrangements
The court prioritises the best interests of the child when deciding custody arrangements.
Parents are encouraged to reach agreements outside of court, but if they cannot agree, the court will determine parenting orders based on factors such as:
- The child’s relationship with each parent
- The ability of each parent to provide care
- The child’s emotional and physical well-being
- A divorce does not automatically change parenting arrangements. These must be separately agreed upon or decided by the court.
How Long Does a No-Fault Divorce Take in Australia?
A no-fault divorce in Australia follows a structured timeline. While the process is designed to be straightforward, it does take time to complete.
1. Separation Period
The couple must be separated for at least 12 months and one day before filing for divorce.
2. Filing and Processing Time
Once the divorce application is filed, the court sets a hearing date, usually eight to twelve weeks later.
- If the application is joint, attendance at the hearing is not required.
- If the application is sole and there are children under 18, the applicant must attend the hearing.
3. Granting of Divorce
If the court approves the divorce, a divorce order becomes final one month and one day after the hearing.
4. Property and Parenting Matters
Although a divorce is finalised in about four to five months, property and parenting matters may take longer to resolve if there is no agreement between the parties.
Overall Timeline
From separation to finalisation, a no-fault divorce takes a minimum of 13 to 14 months. If disputes arise over finances or parenting, the process may take longer.
Moving Forward with Confidence
No-fault divorce simplifies the legal process, making it fairer and less stressful for both spouses.
By removing blame and focusing on practical outcomes, the system allows families to transition smoothly while prioritising the well-being of everyone involved.
If you are considering divorce, Ipswich Family Lawyers can provide expert legal advice tailored to your situation.
Our experienced family law team can guide you through every step, ensuring your rights are protected and your future is secure. Contact us today for a confidential consultation.
