40 Years of the Family Court in Australia – Part 1, Divorce

The 5^th of January 2016 marks 40 years since the Family Court of Australia was established.  The Family Court was established in January 1976 by the Family Law Act 1975 (‘the Act’).  The Act created a uniform family law system across all States and Territories except Western Australia, which opened the Family Court of Western Australia in mid 1976.

The Family Court was established as there was a need for a Court to specialise in family law matters. The Family Court consisted of experienced, specialist judges who were able to deal with family law matters sensitively.  The intent of the Family Court was to be a more informal process than the State Courts and also to include non-legal professionals, such as counsellors.  Most importantly, the Family Court was to encourage and facilitate parties reaching an agreement cooperatively when resolving disputes, instead of an overly adversarial approach.

Over the past 40 years, the Family Court and the Act have changed both in relation to the law and court processes.

In this three part series we will consider more closely the changes to the most common areas of family law practice in Australia today, being:

– Divorce

– Property Settlement Matters

– Parenting Matters

Divorce – Pre 1975

Before the Family Court and the Act, divorces were expensive and often difficult to obtain.  Prior to 1975, if a couple had separated a divorce order could only be obtained by a spouse who proved that the other party was at fault for the breakdown of the relationship. Alternatively, parties had to have been separated for five or more years.  The grounds of fault at the time were as follows:

– Adultery had been committed;

– There had been desertion by a spouse of at least two years without just cause or excuse;

– There had been persistent refusal to have sexual intercourse;

– Habitually cruelty to a spouse of at least one year;

– Rape, Sodomy or Bestiality;

– Habitual drunkenness or use of illicit substances over a period of at least two years;

– Imprisonment of three out of five year period thus being left without means of support;

– A conviction of an offence punishable by five years or more in prison;

– A conviction of attempting to murder within the year prior to the breakdown of the marriage;

– A conviction of inflicting or intending to inflict grievous bodily harm within the year prior to the breakdown of the marriage;

– Failure to pay maintenance as ordered by the court or under a separation agreement;

– Being of unsound mind;

– Being confined in a mental institution a total of five out of the previous six years; or

– Being absent for such time and in such circumstances to be presumed dead.

– Unless in exceptional circumstances a divorce order could not be obtained until there had been a breakdown of the relationship of at least three years.

In order to prove the grounds of fault above, a private detective or lawyer would be employed to collect evidence. It was also not uncommon for a spouse to oppose the divorce. Consequently the divorce process was expensive and somewhat limited to the wealthy.

To obtain a divorce, the applying party had to prove they themselves were not at fault for the breakdown of the relationship.  If the applying party failed to prove fault the court would not grant the divorce.

The court would also not grant a divorce if a spouse had forgiven the other party for any offending conduct, or if their behaviour implied they had given the other party permission to commit one of the grounds of fault.

Given that the process to obtain a divorce was not straightforward, on occasion a couple would conspire together and pretend that one of the grounds of divorce had been established. If the Court learnt of such deceit, the divorce would not be granted.

If fault was proven, the divorce would be made final after three months, known as decree absolute.

The names of divorcing spouses were publically available, and the media would often report the embarrassing details about high profile divorcing couples.  This meant that getting divorced was often a humiliating process.

Divorce – Post 1975

Following the enactment of the Family Law Act, all grounds for divorce above were removed.  The Act now simply requires one ground for divorce that is, the parties’ relationship to have broken down irretrievably (meaning, there is no reasonable likelihood that the couple will get back together).

The ground of divorce is established by a 12 month period of separation.  As a result, divorce became much more accessible to the general population.

Applications for Divorce are presently filed in the Federal Circuit Court of Australia. The applications can be made by either spouse or the spouses together. Generally where there are children under the age of eighteen, the Court needs to be satisfied that proper arrangements have been made for the care, welfare and development of the children. Where the application is made by one party, an appearance before a Registrar of the Federal Circuit Court is required.

Since the commencement of the Act the publications of the names or identifying details of divorcing couples was removed, which has made the already emotionally difficult period of getting a divorce less embarrassing.

Finally, while some say that it is too easy to get a divorce and exit a marriage, the decline in life long marriages can be better explained by changing society values and greater gender equality.  It allows people to leave unhappy or abusive marriages and move forward with their lives.

Whilst the process of obtaining a divorce has been simplified, there continues to be situations which arise where the assistance of a legal representative may be required. Instances where seeking legal advice is of importance include:

– Separation under the same roof;

– Overseas marriages where a certificate of marriage is not readily available; or

– Abridgement of time.

Tindall Gask Bentley is a leading Australian family law firm. Should you require assistance or have queries regarding an application for divorce, please contact us.

Read on:

Part 2 – Property

Part 3 – Parenting and Children

By Diana Dichiera with Meg Allison.