No-Fault divorce is an established principle in the Family Law Act 1975 and is being practiced in Western Australia. Such simply means that a Court does not have to see fault in a marriage breakdown to pursue the application. A breakdown in the relationship with a minimum of 12 months separation is enough grounds for a no-fault divorce application.
What is Divorce?
Divorce is the official and legal way to end a marriage. Applications for a divorce petition are submitted to the Family Court. Obtaining a divorce formally ends a marriage and entitles both parties to remarry. In Western Australia, you do have to prove “fault” to be able to apply for a divorce. This is called a no fault divorce. The only grounds for such divorce applications is the irretrievable breakdown of the marriage. Two factors are also considered upon the petition for a no fault divorce:
- The couple has been separated for at least 12 months prior to the divorce application
- There is no chance for reconciliation
What is the difference between a No Fault Divorce and a Fault Divorce?
In a no fault divorce, there is no need to prove any fault on the part of the outer spouse. The Applicant can simply state their grounds as “irreconcilable differences” or an “irreparable breakdown of the marriage” for the petition. A spouse or the Respondent cannot object to the petition of the applicant. The objection itself will be viewed by the Family Court as an irreconcilable difference.
All states in Australia recognize no-fault divorce. However, some states require couples to live separately for a designated period before either of them can file for a divorce.
Fault divorce applications are not common anymore. Most states in Australia do not even recognize it. In states that recognize fault divorce, the following are common grounds for granting a fault divorce:
- Abandonment with a certain length of time
- Physically unable to have sexual intercourse
- Prison confinement
- Emotional or physical pain from spouse
Defaults are also possible in fault divorces. The respondent can object to a fault divorce through the following defences:
Connivance. Such conditions occur when the spouse agrees or participates in the infidelity.
Condonation. Such claims that the Applicant knew about the complained conduct and have already forgiven the Respondent and resumed with the marital relationship.
Recrimination. If both parties engaged in the similar conduct, one cannot file a petition for divorce against the other.
Provocation. Abusing a spouse that leads to the abused leaving the home cannot be used as grounds for abandonment. The grounds for fault divorce should be willfully committed and was not influenced or provoked by the other party.
Collusion. If the Applicant and Respondent agrees to a fabricated grounds for fault divorce and the other person suddenly changes his or her mind, collusion can be raised and lessen the initial grounds used to file for a fault divorce.
If you are getting divorced, you will need an experienced divorce lawyer to help and guide you. Kean Legal Barristers & Solicitors are experts in Family Law and will give you your best course of action for your case. Call our 24/7 hotline +61 8 6323 8697 to schedule an appointment.
We provide a service where you may attend our offices for an initial consultation limited to one hour for a fixed price of $250.00 payable on the day of the consultation. There is no obligation to engage our services after the initial consultation.
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