A new divorce law amendment bill aimed at reducing harm caused by family violence is on the horizon.
The new law will enable family violence victims to cut ties with their abusive partner sooner so they can move on with their lives.
The bill would require evidence that a Protection Order has been made, and list one spouse as a protected person and the other as respondent.
While the change is likely to be a positive one, there is risk that the reintroduction of ‘fault’ divorces could see abusers objecting to orders by not accepting blame, resulting in the victims being dragged through more court proceedings.
Divorce in New Zealand
We Kiwis have had a no-fault divorce system since 1980. That means a judge does not need to consider why a marriage or civil union has ended, they only need to be satisfied that the marriage or civil union has irretrievably broken down. This is established automatically if the couple has lived apart for two years or more.
Before the no-fault system, a divorce would only be granted if it was proven the marriage had ended because of the actions of one party. So that was either through adultery; desertion; failure to support the family; or the attempted murder of a spouse.
Under the no-fault system, either spouse can apply to have the marriage or civil union dissolved or both can make a joint application which speeds up the process significantly.
If only one person is applying for a divorce, the other person has an opportunity to object to the order being made. If that happens then a hearing is held in front of a Judge who then decides whether an order to dissolve the marriage should be made. If the Judge is satisfied the couple have lived apart for two years, the order will be granted.
Divorce in other countries
Australia has had a no-fault divorce system since 1975. The Australian Courts consider a marriage to have broken down irretrievably once the parties have lived apart for one year.
England and Wales only introduced a no-fault system in 2022. Before 2022, one spouse could apply for a divorce on the grounds the marriage had broken down because of one person’s adultery; unreasonable behaviour; desertion; or because they had been living apart for two years (or five years if the other spouse didn’t agree to the divorce).
In Scotland, whoever applies for the divorce must prove there has been an irretrievable breakdown of the marriage. That means if they have lived apart two years, if there has been adultery or unreasonable behaviour. If both agree to the divorce, then they only need to have lived apart for one year.