On Saturday 16 January 2021 the Adelaide Advertiser featured an article which discussed the Federal Parliament's enquiry into family law and considered a proposal, promoted by the Australian Family Association (‘AFA'), recommending that couples who separate should have to wait two years before filing for divorce (as opposed to the current law of one year), unless there is a history of domestic violence.
The term ‘divorce', as referred to in the article, is the process that couples must go through in Australia to legally end their marriage. Once parties are divorced they can remarry. Many couples may not know that the divorce process has no bearing on how their assets are split although, filing an application for divorce will trigger certain time limits.
Mellor Olsson has a dedicated Family Law team who practise solely in the emotionally charged area of family law. We are not convinced that extending the divorce waiting period by a further year will increase the reconciliation rate and decrease the divorce rate of Australian couples. It stands to question whether the AFA has considered if drawing this process out may have more of a negative than positive impact on separated couples and their families. In the experience of my team, by the time a client meets with us, they (or their ex) have made the final decision to end their marriage. It is not uncommon for clients to tell us, at the first interview, that their decision to separate is final, despite discussing the prospect of reconciliation. The primary role of a Solicitor in the divorce process is to assist the client to navigate and finalise their property settlement and/or child custody matter as quickly as possible and keep their matter out of Court.
The areas that haven't possibly been considered in this proposal by the AFA are that if the time limit to apply for a divorce is extended, it could result in the following:
- Couples not being able to find closure for at least a further 12-months. Once the decision has been made to separate we, as their lawyers, should assist our clients to bring their matter to an end as quickly as possible so that they can move on with their lives;
- It is possible that one party may use the additional 12-month period to delay finalising the asset division/custody process and maintain frequent contact with their ex directly or indirectly through their lawyer, making the other party feel uncomfortable. Although we encourage parties to maintain a co-operative and amicable relationship, we appreciate that this is not always possible.
- The proposed amendment could restrict clients from moving on with their lives, re-partnering and finding happiness again.
It is acknowledged that there will be some exceptions to the proposed two year rule, such as domestic violence. However, clarification must be sought as to how will one determine if they meet the exception requirements. What if couples do not meet the exception however, for other reasons, such as the need to remarry, they wish to divorce earlier and not wait the full two years? Some people already consider the current law of a one year separation period to be oppressive in that it holds them back from being able to put the past behind them and move on.
The article correctly states that Australia has a no-fault system of divorce with 12-months of separation being the only pre-requisite for divorce. We struggle to see the correlation between the no fault divorce system and the “massive financial and human cost” element, as alluded to in the article. If the current system is changed to reintroduce the fault system, which came to an end in 1975, allowing a party to sue their spouse for a breach of the “marriage contract”, a concern is that there will be endless litigation with each party making endless allegations and filing numerous applications. It is important that the AFA consider the possible impact of this change could result in couples losing perspective of the process and what they really want to achieve, namely, a speedy resolution of their financial and/or custody matter. Without taking into account all these factors we could anticipate an increase in legal fees because of the increased workload of lawyers, Barristers, Judges and Registrars, making our Courts even more congested.
Before any changes are made to a system, which from our experience is working well, the Federal Parliament should consult not only with experienced family law practitioners who work with separated couples, but also obtain the opinion of a diverse range of separated couples who have experienced the divorce process.
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.