Australia’s no fault divorce system and the concept of “fairness”

I really liked Rebecca. She was a working mum who had a very positive, pleasant demeanor, and almost always had a smile on her face. She had two young children aged 4 and 2 who she adored. She also had a husband who she had loved for fifteen years of her life.

Rebecca entered my office one afternoon because her husband had come home the night before and asked her for a divorce. He explained that he had been having an affair, he was in love with that woman and, from his perspective, his marriage with Rebecca was over. He also announced that the “other woman” was pregnant.

In an instant, Rebecca’s world was turned upside down.

I worked with Rebecca for months. She and her husband simply could not come to an agreement between themselves concerning the parenting arrangements for their two young children, or how their matrimonial assets should be divided.

I attended a facilitated mediation with Rebecca, her husband and his lawyer.

During the mediation, Rebecca was understandably anxious but seemed to be maintaining her usual positive, pleasant demeanor. Throughout the day, I negotiated on Rebecca’s behalf to the point where, in my opinion, we had achieved a very favorable settlement offer. Yes, she had compromised on her original position (as is common in  family law negotiations) but she was more or less getting what she wanted.

But Rebecca refused to “take the deal”.

I spoke to Rebecca at length about what her life might look like over the next year or two if she were to exercise her right to decline the settlement offer. I spoke about how emotionally draining the court process would be for her. I spoke about the crippling and ongoing legal fees she could face. I spoke about how her children could suffer if she continued with a bitter legal battle. I advised that, in making her decision as to whether to accept or reject the offer, it was important that she weigh up all of these considerations for herself and for her family.

Rebecca snapped. She stood up from the table and yelled the words that I hear so very often as a family lawyer…

“but it’s not FAIR!”

She continued, “when is there any accountability? He and that woman ruined our lives. If I sign that document, this is all over, and he gets to walk away with no consequences…? I just can’t accept this”.

Unfortunately for Rebecca, and many of my clients in this position, what they consider to be a “fair” outcome, which is usually a response to the other party’s “unconscionable” behaviour, cannot come into play when negotiating parenting arrangements or property settlement outcomes.

In 1975, the Australian Government introduced the Family Law Act that governs the framework within which lawyers, mediators and the court work to assist families in reaching a resolution to their post-separation disputes. Within this extensive piece of legislation there is nothing that allows for either party to be “punished” or “held accountable” for what they may have done to contribute to or cause the marital breakdown. This is what we call a “no fault divorce” system.

As difficult as the conversation is to have with a client, and as empathetic as we can be with clients who have been the victim of what they consider to be unconscionable behaviour (such as adultery), the buck stops here – it’s irrelevant. That’s what the Family Law Act tells us, it’s what a judge will say if you raise it in a courtroom, and it’s what your lawyer will tell you when receiving advice from the outset.

If you find yourself in a situation where you feel as though separation and divorce has been forced upon you and you have done nothing “wrong”, accepting the concept of “no fault divorce” is often one of the biggest challenges in the family law process. You will likely hear yourself say the words “it’s just not fair”.

As much as I really felt for Rebecca given the situation that she had found herself in, and as empathetic as I was with her, Rebecca realised that she was required to let go of what she considered “fair” when reaching her legal outcome. It certainly wasn’t easy, but when Rebecca accepted the framework that the law dictated she work within to reach a resolution, Rebecca was able to make sound decisions for her children, her finances and her family going forward.