Divorce in Australia: how far have we come

The law is often required to reflect the change in societal development and attitudes, and the family law system is not exempt from the need to develop and change. In today’s world what was once forbidden or frowned upon is now accepted as a social norm.

 Our receptionist has been listening to the audiobook written by ABC Presenter Richard Glover, “The Land Before Avocado”. In that book Mr Glover has a chapter that deals with the history of divorce. In this weeks’ article we take a deeper look into how divorces in Australia occurred prior to the introduction of our current no-fault divorce system.

Divorce before 1975

Prior to the enactment of the Family Law Act in 1975 obtaining a divorce was a complicated process. Before 1959 each state had their own legislation which set out the reasons why you could get divorced. In 1959 the Commonwealth passed the Matrimonial Causes Act 1959 which applied across Australia.

To have a divorce under the state-based legislation or the Matrimonial Causes Act 1959 it wasn’t enough to be separated from your spouse. You were required to establish a ‘ground’ for the divorce. Each state had their own reasons why a party could apply for divorce. From 1959, the Matrimonial Causes Act provided 14 grounds for the granting of a divorce including adultery, desertion, cruelty, habitual drunkenness, imprisonment, and insanity.

The system was designed to permit genuinely injured spouses to end their marriages, but also protected the institution of marriage by not permitting bored or disillusioned spouses to divorce at will. The law did not permit couples to consent to a divorce. The only exception to a no-fault ground was if a couple had been separated for more than five years, in that case, the spouse had grounds to apply for a divorce. Five years is a long time to be in an unhappy marriage destined to divorce. The Matrimonial Causes Act also contained a requirement that a spouse could not apply for a divorce unless they had been married for at least three years.

Even in situations where spouses were otherwise separating by agreement, one spouse often had to go to the length of staging or publicly admitting to behaviour such as ‘adulterous interludes’ to prove the element of marital fault necessary to achieve a divorce.

Divorce proceedings became an exercise of character assassination. Providing proof often necessitated hiring a solicitor and/or private detective to collect evidence to support the claim and catch the person in the act of adultery. This evidence included statements from witnesses, photographs (both genuine and staged) and hotel receipts. This vindictive process was costly, making it difficult for the less wealthy to access and be granted a divorce.

The media reported the salacious and intimate details of some cases adding the element of public humiliation to the system. In Australia in the 1960’s television aired more than 210 episodes of a show called “Divorce Court” with professional actors re-enacting actual divorce cases. Details would be published in the newspaper providing public humiliation to the parties involved. 

Time for a change

In 1975 the Australian Government led by then Prime Minister Gough Whitlam, introduced the Family Law Act. The Act created the Family Court and established the principle of no-fault divorce. One year of separation became the only ground necessary for a spouse to show that their relationship and marriage had irretrievably breakdown. A wife or husband no longer need to prove that the other was at fault or had done something wrong to obtain a divorce.

Marriage and divorce have changed significantly since the enactment of the Family Law Act in Australia in 1975. Attitudes to marriage and divorce continue to change and evolve. Today applications for divorce can be made jointly or by one party to the marriage.

If you require legal representation or advise in relation to divorce proceedings or your family law matter, please contact Mastronardi Legal.

Please note: the information in this article is general in nature and is not legal advice. For legal advice about your circumstances, contact us to make an appointment with one of our solicitors.