Family Law Principles in Australia
No Fault Divorce
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider which partner was 'at fault' in the marriage breakdown. The only ground for divorce in Australia is the irretrievable breakdown of a relationship, demonstrated by at least 12 months of separation.
The best interests of any children involved are the most important consideration
When a court is making a parenting order, the Family Law Act requires it to regard the best interests of the child as the most important consideration. Parents must also use this principle when making parenting plans.
The Family Law Act makes it clear that both parents are responsible for the care and welfare of their children until the children reach 18 and that arrangements which involve shared responsibilities and cooperation between the parents are usually in the best interests of the child.
In deciding what is in the best interest of a child, the Act requires a court to take into account two tiers of considerations — primary considerations and additional considerations. Primary considerations are the need for children to have meaningful relationships with both parents and the need to protect children from harm. Examples of additional considerations include the child's level of maturity, their opinions, the effects changes will have on them, the attitudes of the parents, and the practicality of visiting arrangements.
The Family Relationships Online website (an initiative of the Australian Government) publishes a useful Fact Sheet on this issue.
The Settlement of Finances
The general principles for a court to settle financial disputes under the Family Law Act are based on:
- The need to finalise the financial relationship between the parties
- Determining liabilities and assets (including superannuation) of each party
- Evaluating the direct financial contributions to the marriage, such as wages and also the indirect financial contributions such as inheritances
- Looking at the non-financial contributions to the marriage such as caring for children and looking after the home
- Factors such as the length of the marriage and lifestyle and living standards
- What the future will hold, particularly in relation to the health of the parties
- What resources will be available in future, including financial resources, care of children and ability to earn, child support which is being or is likely to be paid, the financial situation of someone with whom you are now cohabiting, any legal obligation to support other people in the household.