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It is a common myth among many Australians that:

  1. Someone is to blame for a relationship breakdown; and
  2. Identifying who the guilty party will influence the outcome of the property settlements or parenting access.

Prior to 1975 in Australia that was the legal reality.  If a married person wanted to get a divorce he or she needed to show in court that the other party was at fault for a particular reason such as adultery or cruelty.

However, the Family Law Act 1975 established in Australia the principle of no-fault divorce in Australian law.  This means that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation.

While reducing the fuel for television dramas, the no fault divorce system is widely regarded as a system that helps reduce bitterness and adversarial processes from a separation.  Not having to prove the other person did something wrong and instead just getting on with the separation process means less time, less cost and in the end somewhat less heartache than trying to prove who is at fault.

This myth also extends to spouse maintenance.  One party may feel that the “cheater” should be made to pay more as punishment for their wrongdoing.  That somehow justice will be served by imposing a payment system from the “wrongdoer” to the “innocent”.

But again, regardless of perceived wrongdoing the family law system is not intended as a vehicle for punishing one party by providing more financial support to the other.

Please contact a member of the Wonderley and Hall Family Law team if you have any questions about this article or other family law related matters.