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Family Law

No-fault divorce: A fault in our laws?

By May 12, 2020February 23rd, 2024No Comments

In the US, a celebrity called Kristin Cavallari recently caused a small stir when her newly filed divorce documents were allegedly leaked and revealed to contain the salacious words “inappropriate marital conduct”. The splitting couple had released a mutually-amicable statement after Cavallari’s husband had filed for divorce, initially citing irreconcilable differences. But the leaks allegedly expose that Cavallari has claimed in court documents that her ex “is guilty of such inappropriate marital conduct as renders further cohabitation unsafe and improper”. While Australia has had no-fault divorce since the Seventies, in many US states it is still required for you to prove there are grounds for divorce, such as infidelity or abuse.

Tennessee is one such fault state, and in fact has 15 different potential grounds for divorce.  A US family law specialist Marlene Eskind Moses said:

“Irreconcilable differences is certainly the least aversive and the more amicable one. Marital misconduct is the next least-aversive and they can kick up from there.”

So what exactly does marital misconduct or “inappropriate marital conduct” mean? Moses said “marital misconduct” could cover a range of spousal behaviours on a spectrum of “relatively mild grievances” to “potentially criminal acts”:

“It can be anything from verbal abuse to physical harm, extramarital affairs, to financial withholding, to excessive sex, abnormal sex… The term is very expansive. It’s pretty much a catch-all.”

While it only serves to heighten gossip for Cavallari, her case includes the filing of temporary restraining orders preventing each party from disposing of or concealing marital property, harassing each other, or relocating the children. This is, however, apparently quite typical for divorce cases in Tennessee.

Family lawyers in the US say there can be financial advantages or advantages regarding co-parenting if you can prove a spouse is “at fault” and therefore it can sometimes be a strategic move to use such grounds.

In Australia, when the Whitlam Government introduced no-fault divorce in Australia in 1975, it abolished the need to prove misconduct in order to be granted a divorce. Either party to a marriage can freely terminate the marriage without the consent of the other part, and misconduct is legally an irrelevance.

As such, the only real way to “punish” an ex over misconduct such as extramarital affairs here in Australia is to claim wastage of marital funds as a factor to be taken into account in a property settlement. As for family violence, our court system does take it into account both in parenting matters and property settlements, but not explicitly as a causal factor in the ending of a marriage.

No-fault divorce does have its critics, who argue that the costs of marital misconduct are no longer recognised in family law, and that no-fault divorce removed disincentives to behave responsibly within a marriage.  The fact that fault could be used strategically is seen as a good thing, because courts could award more favourable property settlements to spouses who had been wronged or a victim of marital misconduct.

However, although Australia is currently undergoing a phase of family reform (somewhat stifled by the pandemic), it’s pretty unlikely that the Family Law Act would be ever amended to reinstate fault-divorce.

Do you need legal advice in relation to your divorce? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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