Comparing family law in Australia v England

While there are many similarities between Australia and England, there are some distinctions between the two countries when it comes to divorce law. A Family lawyer in Australia works with a different legal system than that of a lawyer in the UK. In this article, we examine some of the key differences.

Financial proceedings in Australia

One of the chief differences between the divorce laws in Australia and in England is that in Australia, spouses do not have to wait for divorce proceedings to begin before financial proceedings can start. However, there must have been a period of 12 months (as a minimum) from the date a couple separated before a divorce can be initiated.

According to the Federal Circuit and Family Court of Australia, almost all proceedings relating to finances and property should be started within 12 months of the divorce order coming into effect. This can, in some cases, provide key benefits, for instance, the 12-month deadline allows for any claims following this period to be blocked, providing reassurances to some spouses.

Financial proceedings in England 

Conversely, in England, it is only when you apply for a divorce, that you can begin financial proceedings. Spouses are advised to make sure that they reach a binding agreement with each other because otherwise, it is possible that one of them could make a financial claim against the other at any point in the future. One recent case, as outlined in the Law Society Gazette, demonstrates how financial claims can be made when there is no financial order in place.

To apply for a financial order, the UK government advises that it can be simpler to do this after you have received your conditional order and before you get your final order. Once you have applied, you will then attend a short hearing to discuss the details of your divorce application. Following this, you will have an appointment with financial dispute resolution with the aim of helping both parties agree on a financial settlement without having to have a final hearing. If no resolution can be reached, there will be a final hearing where the judge will decide on how financial assets will be split.

No-fault divorce law 

Another difference, up until recently, was the use of no-fault divorce law. In 1975, the Family Law Act was introduced in Australia which includes no-fault divorce law. The no-fault rule means that applicants only have to state one reason for their divorce, ‘irretrievable breakdown’. Divorcing partners need only state this as a reason for their divorce without having to detail what the specific grounds are, as they did in

England prior to 6th April 2022.

Grounds for divorce in England

In England, the laws were different up until recently. Applicants had to cite one of 5 specified grounds in order to get a divorce. They are as follows:

• Adultery
• Desertion
• Unreasonable behaviour
• 2-year separation
• 5-year separation

Some argued that the grounds did not make way for amicable divorces and that having to state a reason for the divorce was a precursor to more acrimony and lengthier court proceedings. It is also believed that the new no-fault divorce laws in England which include other changes such as changes in terminology and a minimum 20 week waiting period for reflection time, make the process simpler, allow time for reconsideration and can be more cost-effective.

Conclusion 

While the systems in England and Australia have become more aligned in terms of no-fault divorce, if you are divorcing in England, it’s important to be mindful of the need to reach a financial settlement as part of your divorce to avoid having to potentially navigate this later down the line.