Abstract

The concept of no-fault divorce which became law in Australia in 1975 was part of a revolution in divorce law reform which swept through the western world in the late 1960s and 1970s. It was predicated on a notion that the law should aim to buttress marriage, but if the marriage was finished in fact, the law should “enable the empty legal shell to be destroyed with the maximum fairness, and minimum bitterness, distress and humiliation.” Property would be divided on a “once for all” basis, the children, though not physically divided, would be apportioned between a “custodial” parent and an “access” parent, and the parties could start afresh. However, the last 40 years have shown that the assumption that the parties could be autonomous after divorce was wrong. The development of family law has shown that while a marriage may be dissolved, parenthood is indissoluble. The idea of the “enduring family” has emerged. However, there has not been a corresponding re-evaluation of concept of no-fault divorce or of the basic grounds for divorce. It is time this was done.

Keywords

Family Law Act 1975, no-fault divorce, parenthood

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