With one in three Australian marriages ending in divorce, you may genuinely wonder whether a husband’s divorce rights are the same as the wife, particularly in relation to child custody arrangements and child support.
Australia’s no-fault divorce system has been operating successfully since 1975 and in theory, the Courts do not favor either gender when making judgments about property settlement or child custody arrangements.
Each case is decided on its facts and merits and a husband’s divorce rights are awarded no more priority than those of a wife, instead the courts always focus upon the best interests of the child.
The Father’s Rights Movement in Australia has at different times expressed concerns that a husband’s divorce rights are less than those of a wife, particularly in relation to parenting arrangements and child support.
Divorces in 21st century Australia focus upon splitting assets equally and the outdated perceived biases against men in family law need no longer apply. Despite this, there are still instances where men may be perceived to be disadvantaged in property settlements or parenting arrangements.
This article will walk you through 5 simple truths about a husband’s divorce rights which you may not be aware of.
1. There is no such thing as a Husband’s Divorce Rights
Australia’s no fault divorce system described in the Family Law Act 1975 does not recognise husband’s divorce rights or women’s rights during divorce proceedings. The legislation does however focus on the best interests of the children covered in s60CA of the Act.
The Family Court system in Australia focuses on ensuring that during separation and divorce, a child has the right to a meaningful relationship with both parents but they must also be protected from exposure to family violence and child abuse (s 60CC(2) and 2A). The courts also take into consideration other factors, including the child’s views and the nature of their relationship with each parent (s60CC(3)).
Beliefs that a husband’s divorce rights were less than those of a wife were popularised under Australia’s old fault divorce system which operated prior to the 1970s, where typically the husband was the sole breadwinner and the wife was the homemaker and stay-at-home Mother. The Sexual Revolution, feminism, increase in working women and introduction of the no-fault divorce (1975) transformed the legal landscape considerably.
Yet many of these outdated stereotypes persist and are popularly expressed on numerous men’s rights websites and Facebook groups without any real basis in fact.
2. Men are not more likely to be financially disadvantaged after divorce
After a separation and during the divorce process, your lawyer should help you draft a comprehensive property settlement or financial settlement explaining how all the assets and liabilities of the couple will be divided. Courts focus on what is just and equitable for both husband and wife bearing in mind the best interests of the child.
Even though courts focus on a fair and equitable settlement, statistics and data show that following divorce, it is women who are more likely to be worse off financially than men. Potential reasons for this include men being able to continue with their career path (if they were the sole breadwinner) while the wife (if she was a stay at home Mum) may have to learn new skills and obtain employment. This could be complicated if the woman is still responsible for childcare.
Data collected (in 2009) from the Australian Institute of Family Studies concluded that:
- In the first year post-divorce, the wife’s income declined while the husband’s remained the same. Compared to incomes of non-divorced women, woman in their first year following divorce were found to be “significantly behind” their peers.
- The trend continued for the next four years as women experienced a 2.9% increase in income from pre-divorce levels compared to an increase of 12.3% for non-divorced women. For divorced men, income increased by 12.5%.
This data (although from 2009) suggests that women are playing catch-up with their incomes for around 5 years post-divorce. However, many divorced men (in their 40s and 50s) were also experiencing significant financial hardship following divorce.
In 2018, family law barrister, Victoria Whitelaw told the ABC that older women who were divorced were significantly worse off than their male counterparts of the same age bracket:
More recent Australian Institute of Family Studies data found that both men and women over 55 were both much worse off after divorce with less disposable income and assets than their married peers. This factor may be influencing a drop in divorce rates seen over the last few years with couples instead deciding to remain in an unhappy marriage rather than leave and experience significant financial hardship.
3. Husbands are equally likely to be granted custody
Australia’s family court system operates on the basis of a presumption of shared parental responsibility (s61DA) and unless there are instances of family violence or child safety concerns, the court prefers that children get to spend equal amounts of time with both parents. Courts do not like to give sole parental responsibility (formerly known as sole custody) to either a husband or wife, unless there are serious concerns about family violence or child safety issues.
Our article, Father’s Right’s After Separation found that fathers get awarded 50/50 custody more regularly than people think. The Australian Institute of Family Studies (AIFS) data found that approximately 3% of couples who go to court to decide parenting arrangements for children are cases where there are allegations of family violence, child safety concerns or other complexities. The remaining 97% of couples who don’t litigate parenting issues usually use family dispute resolution services (like Relationships Australia) or engage lawyers to assist.
The data collected by AIFS found that, in most cases, children spent the majority of their time with their mother but got to see their father regularly. This was more likely to be the case with very young children or babies. The percentage of time children spend with each parent then is used to calculate the apportionment of child support payments.
4. Husbands are equally entitled to receive child support
The legislation in Australia governing child support payments is contained in the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 which established the Child Support Agency. The legislation relates to all children born on or after 1 October 1989 and the child support arrangements are administered by Services Australia and based on your annual income.
Child support is usually paid to the party who has the primary care of the children by the former spouse and payments are calculated based on your annual income, the ages of your children and their needs and how much time each parent spends with the child. You can check your child support assessment by accessing the MyGov portal. In relation to a husband’s divorce rights and child support, the rights and responsibilities to pay child support apply equally to men and women.
Concerns about a husband’s divorce rights being less than a wife because of the way the law operated in a practical sense resulted in a push for significant amendments to the Family Law Act on the issue of shared parenting. This resulted in the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 required that both parents be equally responsible for their children following a divorce.
Father’s rights’ groups such as Dads In Distress welcomed this amendment but expressed some disappointment that the Act did not “force the Court to view parents as equals” (Parliamentary Submission by Men’s Confraternity).
Despite this amendment, Australian Bureau of Statistics data from 2012 showed that little had changed and that six years following the passage of the legislation:
- 21% of children aged 0–17 years had a parent living elsewhere.
- 26% of children did not see that parent or did so less than once a year
- 52% of children did not have an overnight stay
The failure of this legislation may be more of a reflection of the courts not ordering shared parenting in cases where they should have. It is likely that the Family Court system in Australia will continue to struggle to administer this legislation particularly in high conflict divorce cases. Even though a husband’s divorce rights, in theory, are equal to a wife’s, when considering shared parenting; the reality is that many fathers still report not seeing their children as much as they would like.
Talk to a Member of Our Team Today
Going through a divorce is an incredibly stressful experience and the easiest way to negotiate this process is to engage skilled family law professionals to assist. Justice Family Lawyers have offices in both Sydney and Melbourne and we have consistently delivered good results in primary custody cases and visitation rights for husbands, so contact us today to discuss your case.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.