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Does it matter whose fault the divorce or separation is?



I hear a lot of people in Australia still trying to cite 'grounds' for divorce.


Does having grounds effect property settlement outcomes? Does it really matter whose fault the divorce is?


Short answer, no it doesn't.


Why, in the movies and on tv, spouses and divorce lawyers hire private investigators to shadow their dearly beloved and snap the most incriminating photographs they can?


In America, at least in various states, they have “at fault divorce”. Essentially if you can prove that your marriage was unsuccessful because of the actions of your spouse you get a bigger cut (if not the entire) property pool. Conversely, in Australia, we have “no fault divorce”. Broadly, we don’t care why your marriage didn’t work. The Family Law Act is just there to clean up the pieces.


But which system is better?


No Fault Divorce came into existence in Australia in 1975 with the enactment of the Family Law Act. Before 1975, you had to have a good reason to get divorced, you simply could not just part ways. A good reason includes, domestic violence, gambling problems, alcoholism, drug addiction and infidelity. But, with the Family Law Act spouses simply needed to demonstrate to the Court that their marriage had broken down, irretrievably. How is this shown? By spending 12 months separated. So, in 1976, 12 months after the enactment of the Family Law Act, Australia saw a spike in divorce rates (to a level not yet repeated). Couples, unhappily, married were finally able to sever their marriage and move on, both symbolically and practically (by allowing them to remarry and not commit bigamy).


How Australia deals with property post-separation changed as a result of the Family Law Act. Property was now to be divided based on each person’s contributions to the asset pool and adjusted according to their future needs factors. The circumstances that led to the division of property were no longer relevant.


The law in America is different, and does vary from state to state. It generally includes provisions for “no fault” separations but what remains in their legislation in a financial incentive to secure concrete evidence proving that the other spouse caused the whole thing to fall a part.


What about infidelity?


In Australia, we recognise that often issues like infidelity are symptoms of a larger problem in a relationship and as such don’t take such issues into account.


What if the actions contributed to a decrease in the property pool?


There are arguments to be had for the “other faults” listed above. For example, if gambling decreased the property pool then it could be considered a negative contribution, or if the victim of domestic violence has increased future needs (medical bills or a decreased income earning capacity) the division of property can be adjusted accordingly.


Why is it different in America?


But in America, perhaps what their legislation is demanding is a little bit of maturity between adults. Perhaps America is asking that you show your spouse some common indecency and be upfront and honest with your feelings, before you pursue an affair.


What do I think is better?


There is value in both ways. Although Australia’s system is not without flaws, America’s laws feeds animosity and while adults are trying to gain incriminating information about each other children could be getting hurt. Having to prove the other person caused the breakdown of a marriage could irretrievably damage any prospect of an ongoing co-parenting relationship, post-separation.


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