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No-fault divorce, or a divorce where neither spouse is required to prove fault or wrongdoing was first introduced by the Bolsheviks following the Russian Revolution of 1917.
Some six decades later Australia followed suit.
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This meant that a court doesn’t have to consider which partner is at fault in the marriage breakdown.
A report by The Australian Institute of Family Studies finds, while a large majority of Australians think that it’s too easy to get divorced, very few subscribe to the view that people should stay together if the marriage is unhappy.
Former lawyer and founder of Separation and Divorce Advisors Jacqueline Wharton says twelve months of separation is enough ground for divorce in Australian law.
However, she says you must be married for at least two years before you can apply for a divorce in Australia.
“You could have separation under the same roof, but separation in separate houses, is obviously the easiest way to prove that you've been separated. And once you've been separated for twelve months, you're entitled to apply for divorce and it doesn't have to be any blame or any other circumstances.”
You can file for divorce on your own, even if your partner doesn't agree to it, whether it’s for religious, cultural or any other reason.
Jacqueline Wharton says no-fault divorce gives people more freedom to make decisions that are right for them and their families. However, she says, when contemplating a divorce it's advisable to have three separate plans; the first, a financial plan.
“First thing we really do is to help people come up with a budget, a very detailed budget, which includes all of their kids' costs and all of their everyday costs, as well as their annual costs, like car registration or whatever else, and also looking at what their assets and all their debts are. That includes superannuation, or any assets that are held in their own names, or held jointly as a couple or that their ex signed. Because all of those assets and debts are going to the pool to be divided once you start working on your financial agreement, or your financial settlement.”
Ms Wharton advises to get copies of any financial records, bank accounts, tax returns, going back at least three years.
“One thing we always stress to our clients is that your ex will be entitled to see your personal bank account, so we do have people saying to us, that I might put money aside into this and spend it this way and that way, but just remember during the court process, your ex is actually entitled to see all of those bank accounts and they'll see how you've been spending your money. So just be really careful on that.”
Ms Wharton continues, “So in summary in your financials, just remember try to prepare, prepare, prepare. Look at everything. Look at your day-to-day expenses, and look at your on-going expenses. Try and look at what money you’ll need in the future. It's not just today you need to be worried about, but if you want to keep the house, how you're going to pay the mortgage and any other expenses associated with that.”
The second plan is in relation to any children you may have with your spouse.
If there are no court orders in place, then how the children will be cared for has to be negotiated between you and your ex. Ms Wharton says it's important to remember, that you don't have any rights in relation to parenting and neither does your ex.
“The only people that have rights in the Family Law system are the children. They have a right to know both their parents. Most of the time, unless there is a history of violence or abuse, children are entitled to see and spend significant time with each parent, to get to know them.”
In Australia, each year over 50 thousand children aged under 18 years have their parents’ divorce. Negotiating how children will live with separated parents is often a complex situation.
Ms Wharton says the key for parents is to “tap” into their parenting side and work out what's best for the children.
“We really encourage people to think about the kids' schedules and think about how the kids are going to work between the houses, and to sit down with your ex and work out how you are actually going to tell the children about what's happened. Kids just want to feel safe and loved by both of you. So coming up with a plan before you actually tell the children, we think that's significant and a really great thing to do.”
The Australian Institute of Family Studies’ report says Australia women are more likely than men to initiate divorce and to end the marriage. AIFS research also finds that despite fair levels of dissatisfaction with their emotional and personal lives, women seemed to be happier than men following their divorce.
Ms Wharton says the third plan you need should be around how to deal with the emotional part of your separation.
“The separation has so many highs and lows and we find that people who are clear about who they want to be in their divorce, have less regrets going forward. Having less regrets really means that you are going to heal from this really horrible part of your life. Yeah, it's one of the key things people need in order to move on.”
She continues, “Whether they want to be a victim or whether they want to be seen as balanced or how they want to be seen by their children in five years. If you can think about all of those things and if you can look at yourself in the mirror each night and think 'I am proud of how I was today and how I behaved', than you are a long way to healing and moving on with your life.”
During a divorce people need to be supported. Ms Wharton says the first person in a support team is yourself.
“And that means when you're feeling good and there will be times when people feel really good in divorce, they feel ‘I’m in control of this, I can do anything’ and during those times we really advise people to get as much done around the house, or at work or whatever they can. Cook all the meals, do all the washing, do whatever you can because there will be times when you're feeling low, and you won't be feeling like that. So the fact that you can get out a frozen meal from your freezer will help you indefinitely.”
Ms Wharton says divorce and separation is a journey and they encompass so many aspects of your life. She advises, “Look after yourself and find the ways to do that. Make sure you get across your finances. Prepare, prepare, prepare. Think about your immediate needs, financial needs, but also about your future needs and make sure you look after your kids. A good support team is great, a good lawyer, a good psychologist, a good adviser, a GP, some good friends that you can have a laugh with. Looking after yourself, getting some exercise, and making sure you eat well and sleeping as much as you can. That's a recipe for a good divorce as far as we're concerned.”
You can file for divorce online with the “do-it-yourself” divorce kit.
However, it is always advisable to see a lawyer. Certain rights and obligations in relation to the full spectrum depend on the individual circumstances.
For more information visit: australia.gov.au