Expert – Fault versus no-fault divorce system in Family Law 

Today’s post has been contributed by John Bui, who is the Principal Solicitor of JB Solicitors. The firm primarily deals with matters falling under family law, criminal law, property law, and commercial law. John is a nationally accredited family law mediator and arbitrator.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Different countries may follow different legislation on divorces and their family law structures may vary. For example, Australia follows a no-fault divorce system, whereas the US follows a fault-based divorce system.

What is the difference between the two? Essentially, in a no-fault divorce system, there is no need for a party to prove that the other party has done something wrong which has led to the breakdown of their relationship.

There could be many reasons for no-fault divorce systems, such as:

1. Irretrievable breakdown of the marriage;
2. Living away from each other for extended periods of time;
3. Irreconcilable differences (as is the case in Australia), or
4. Incompatibility.

On the other hand, in fault-based divorces, a party will generally request for a divorce from the other party because of some fault committed by the latter party. These faults, often termed as matrimonial offences, can include various things such as:

1. Substance abuse;
2. Adultery;
3. If one partner has been incarcerated;
4. Abandonment for a period of time (minimum period of time to file for divorce may differ from state to state);
5. Emotional, physical or psychological abuse;
6. Impotence;
7. Cruel treatment;
8. Inability to have physical relations;
9. Infections caused by Sexually Transmitted Diseases (STDs)

Notably, in case of fault divorces, a spouse may object to the divorce if he or she wishes to. In this case, typically the spouse who is objecting to the divorce will need to present a defence to object to the fault.

Fault-based divorce systems can get more complicated especially considering the grounds of divorce. In such cases, proving incompatibility or irretrievable breakdown of marriage will not be sufficient.

The party who has filed for divorce must prove the other party’s misconduct. For example, in case the party filed for divorce on the basis of cruel treatment, the party needs to provide evidence that the cruel treatment was harmful to their mental and/or physical health.

Defences in fault-based divorce

As mentioned above, in such a divorce system, parties can object to the divorce by presenting defence. There are different kinds of defences based on the different grounds for divorce, such as:

• Collusion – an agreement between two spouses to fabricate grounds of divorce for some specific purpose;
• Connivance – in cases of adultery, alleging that the party filing for divorce was complicit in act of adultery
• Recrimination – if both parties are at fault for similar conduct such as if both parties have had extramarital affairs
• Provocation – if a party’s misconduct caused the other party to act in a certain way, for example if the other party abandoned the party filing for divorce due to provocation
• Condonation – a claim stating that the party filing for divorce was aware about the misconduct and had forgiven that conduct

Conclusion

As we’ve explored in this article, different countries follow different legislation with regards to divorce. Divorce is an emotionally challenging event. Legal procedures often become complicated and are extremely time-consuming.

Especially in fault-based divorces, the anxiety around legal steps in finalising the divorce remains high. Moreover, issues on alimony, property settlement and child custody will also arise.

When filing for divorce, it is imperative to stay strong and be aware of all legal technicalities that will arise. Failure to do so may lead to parties incurring huge losses and they may often find themselves caught up in court battles.

Understanding the laws that apply to your jurisdiction is very important. The primary way to do so is to engage with as many legal blogs as possible.