Divorce And Women’s Rights in Australia

In Australia, in 2020 to date, there have been 46,604 divorces according to Budget Direct. In fact, 1 in three marriages in Australia ends in divorce. The issue is that divorce might not be the end of a relationship, and it may not be simple either. There are a number of concerns when it comes to who takes care of the children and dividing the assets too. 

When a marriage ends, it is not only an emotion process, but it can be a costly process too. It is important that you understand your rights and how you can make your divorce a smoother process. 

What do I need to do to apply for a divorce in Australia?

There are two simple criteria for applying for a divorce in Australia. 

You must: 

Prove the irretrievable breakdown of your relationship and that there is no chance that you can reconcile. 

Have been separated for 12 months and a day

There is however a stipulation that if you have been married for less than two years, you have taken the step of visiting a marriage counselor.

What about a no-fault divorce? 

Divorce used to be only granted if there had been fault within the marriage. However, since 1975 there is an option to have a no-fault divorce. Some of the most typical grounds for divorce are:

• Insanity
• Imprisonment
• Drunkenness
• Cruelty
• Adultery

And the spouse would need to prove marital fault. The family law system was given an overhaul and in 1975 it was possible to file on the grounds of an irretrievable breakdown of the marriage.  

This change in the law was a turning point for women who wished to file for a divorce, and as such, there has been a steady increase in the divorce rate in the decades that followed the change. 

Passports and unmarried women

Married women who applied for a passport before 1983 would be required to provide their husband’s authorization. This law was repealed in 1983 and a married woman can apply for a passport by herself. 

Who is entitled to what when divorcing in Australia?

One of the biggest worries a woman who has been a homemaker, or taken care of the children might have is that if they get divorced they will be left with nothing. Potentially ending up homeless, without an income or their children. 

In order to have a fair division of assets, both parties will be required to identify the liabilities, superannuation interest, and assets that form the property pool. 

Each party will need to understand the net pool, and financial documentation will be exchanged early on in the process. 

A full assessment of the contribution of each party will be undertaken. This will look at the full relationship and who contributed to the welfare of the family and the net property pool. It is important to note that these contributions can be any of the following:

• Contributions can be made directly (these will be made by one of the parties’ to the relationship)  
• indirectly (these are made by one of the parties family members), 
• financially (such as earning an income)  
• non-financially (like renovations or improvements to a property done by one of the parties)  made as homemaker or parent. 

Each contribution will be assessed in percentages or in a range of percentages. 

The future of each party will be taken into consideration too. This will take into consideration of their future financial circumstances. The health and age of each party member will be taken into account. 

Who will take care of the children and which party has the largest earning capacity will all come into play. There will be some adjustments to the percentages made now. 

Your divorce lawyer will keep each of these steps as smooth as possible to make sure that these logical steps culminate in a fair division of assets. 

What about children?

The law will work on the basis that the best interest of the child is to have shared parental responsibility. This means that there will be equality between the parents for deciding what is the best for the child, or children in the long term. However, this does not mean that children will spend 50/50 with their parents. The court will take into account the best living situation for the child and children. 

This might not the best for the child if there:

• One parent with a drink or drunk issues
• There has been violence and/or child abuse
• High conflict

The living arrangements should always reflect what is best for the child/children. 

Technically mothers’ rights and fathers’ rights do not exist within Australian law, instead, it is what is best for the child – Family Law Amendment (Shared Parental Responsibility) Act 2006. Working alongside family lawyers in Melbourne will give you insight into what this means, and how it can impact you. 

88% of separated children live with their mothers – Australian Bureau of Statistics. 

What is the financial impact of divorce on women?

Many women choose to stay at home and take care of the children and the home. This often puts them at a financial disadvantage in the case of separation and divorce. A study found that women were significantly worse off than divorced men and women who were never divorced – Australian Government, Australian Institute of Family Studies. 

In some cases, women may be entitled to either spouse maintenance, which is money paid to them by their former partner if they do not have the means to adequately support themselves. Or, a de facto partner maintenance. This is where financial support is paid by a party to a de facto relationship that has broken down to their former de facto partner, in circumstances that they cannot adequately support themselves. 

There is a time limit on these financial support applications, spouse maintenance applications must be made within 12 months and defacto relationship is within 2 years of the breakdown. 

The court will assess your circumstances and decide if and what you are entitled. It is vital that you have the right legal advice and support on your side so that you can be sure you have a fair division of the assets, equal access and rights to the children and spousal maintenance if you are entitled to it.