In Australia, family law and divorce are governed by the Family Law Act 1975, emphasising the resolution of family disputes in a fair and just manner while prioritising the best interests of the children involved.
The legal process of divorce in Australia doesn’t focus on attributing fault to either party. The only ground for divorce recognised is the irretrievable breakdown of the marriage, which can be proven by a 12-month separation period.
Either or both parties can apply for divorce if they have been separated for at least one year and can’t reconcile. If there are children under 18, the court requires evidence of proper arrangements for their care.
Regarding property settlement, Australia follows a ‘no-fault’ system, aiming for a just division of assets and liabilities acquired during the marriage or relationship. The courts consider various factors like financial contributions, non-financial contributions, future needs, and parenting responsibilities when determining a fair settlement.
Couples are encouraged to reach an agreement through mediation or negotiation before resorting to court, and if an agreement is reached, it’s often formalised in a consent order.
In matters related to children, the primary concern is their welfare. If parents can’t agree on parenting arrangements, the court intervenes, prioritising the child’s best interests when making parenting orders. Family law matters, including divorce, property settlement, child custody and spousal maintenance are typically resolved in the Family Court of Australia or the Federal Circuit Court, both of which specialise in family law disputes.
Mediation is a key aspect of Australian family law, emphasising alternative dispute resolution methods to settle conflicts without going to court. Family dispute resolution (FDR) is mandatory in most cases involving children before court proceedings can be initiated unless exemptions apply, such as family violence or urgency.
Regarding spousal maintenance, if one party cannot adequately support themselves following the separation, the other party might be required to provide financial support. This can be temporary or ongoing and is determined by considering factors like the recipient’s income, earning capacity and financial needs.
In cases involving family violence or child abuse, the courts prioritise the safety of all parties involved, particularly children. Courts can make orders to protect victims, including intervention orders or restrictions on parenting arrangements to ensure the safety and well-being of those affected.
Lastly, Australia’s family law system aims to resolve disputes in a non-adversarial manner, prioritising the welfare of children and promoting fair and equitable outcomes for separating couples through mediation, negotiation and if necessary, court intervention.
Author info:
John Bui is the Principal Solicitor of JB Solicitors a law firm based in Sydney, Australia. John has extensive knowledge in the areas of family law and commercial litigation.
