When your relationship breaks down
There’s no shame and there’s no blame either when parties separate. In an ideal world, a separating couple would recognise the relationship had nothing left and could wish each other all the best. It’s sad reality that parties often believe the blame for the separation should be allocated and hope to seek vengeance in the family law process.
There are many misconceptions about Family Law. One being that one party can use the family law process to allocate blame to the other party and that makes a difference in a divorce, a property settlement, spousal maintenance or in parenting arrangements.
Since the Family Law Act was enacted in 1975 the family law system became a “no blame” or “no fault” system, neither party has to prove why the relationship broke down. The previous system of allocating blame required one party to prove the fault of the other. There was no dignity in the process, and grievances about the reason for the breakdown were aired in the courtroom. Neither party walked away with their dignity intact and the process was distasteful.
The only basis for divorce in Australia since the legislation was enacted in 1975 is irretrievable breakdown of marriage evidenced by a period of separation for 12 months.
The no-fault principle extends also to the wider areas of family law. Whether one parties spending habits were excessive during the marriage, perhaps an extravagant love of new clothes or new fishing gear, or whether one party was unfaithful or not, is not a factor in the issue of property division between the parties. There may be circumstances where fault or blame may be relevant, such as where one party has deliberately wasted away a business. In one such famous case, a husband failed to insure a fishing vessel — the major asset of the parties, which subsequently was lost at sea. Court found his failure to ensure was waste of matrimonial asset. However those cases are rare and outside of every day conduct.
There are circumstances where domestic violence can make a difference in a parenting matter with the children being put at risk. In a property division matter, domestic violence may have some impact, if domestic violence has reduced the income earning activities of the victim spouse. This is a factor the court may take into account the court when considering property division.
The no blame, no shame approach by the court recognises that parties who come to court are everyday human beings, facing one of the most difficult times of their adult life. The court recognises the parties need expert assistance, not allocation of blame by raking over the calls of a defunct relationship. The court attempts to treat parties with respect and preserve their dignity, not use the court as a place for grievances to be aired and particularly not as a place for one spouse to complain at the behaviour of the other.
In parenting cases the court looks at the best interests of the children and in property, the court looks at the contributions of each party throughout the marriage, making adjustments for future needs factors and striving for a just and equitable division.
As individual circumstances vary, contact my office for specialist advice for your situation.