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Separation, Divorce, Parenting & Child Support, Property & Financial Settlements, Same-Sex Relationships, and Alternative Dispute Resolution
Separation and Divorce are among the most stressful life events anyone can go through. They can have a major impact on your family and finances if handled incorrectly.
That’s why we have dedicated this page to answer some important questions to assist you along these challenging life journeys.
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Separation and Divorce
What’s the difference between being separated and divorced?
Divorce is the legal termination of a marriage through an Order made by the Family Law Courts. This follows on from the married couple having been separated for at least 12 months prior to one or both of them filing an application for divorce.
Separation is when at least one party considers that the relationship is at an end. The parties may stop living together at that time – with one or the other leaving the relationship home they were sharing – or they may both continue to live under the same roof but in separate bedrooms of the home they are sharing and thereafter act in no way as husband and wife or de facto partners, other than perhaps sharing the care of their children or ongoing contributions made by each of them towards joint outgoings such as the mortgage or rent.
Once parties separate, they can start working through issues such as the division of their assets and debts, the parenting arrangements to be made and financial support for their children, and spousal maintenance. For married couples, you don’t have to wait until you are officially divorced to start negotiating and settling the parenting and financial aspects of your relationship.
What does the law consider to be “separation”?
Separation occurs when one partner has communicated to the other partner, whether by action or conduct, that the relationship has ended. It only requires one of the two parties to consider that the relationship is over, to convey that to their partner, and thereafter to act accordingly, for the separation to be accepted by the Family Law Courts as having taken place from that date.
If both parties agree that the separation occurred as of a particular date, any conjecture about this issue is eliminated.
You do not need to live in different properties for it to be considered that you have separated. You can both continue to be in the same home – but from a certain date at least one of you has considered the relationship as over, have confirmed your opinion that it is so to your partner, and after that act in no way as a married or de facto couple. This is called separation “under the same roof”.
What does the law consider to be “divorce”?
You must be separated for at least 12 months before you can apply to the Family Law Courts for a divorce order to be made. But you do not need to wait until then to work out arrangements for the children of your marriage and to start negotiating a property settlement (the division of your matrimonial assets, financial resources and liabilities).
Applications for divorce are made to the Federal Circuit Court of Australia. You can lodge the divorce application yourself, or we can assist you with this. If there are children of the marriage who are still under 18 years of age, you will need to satisfy the court that appropriate arrangements have been made for their welfare before the court will approve your application and make the divorce order.
If some or all of the separation period before the divorce application was lodged with the court was “under the same roof”, statements will have to be presented to the court outlining how you and your spouse have led completely separate lives – and not as husband and wife in any way – for at least 12 months before the divorce application was filed.
Is it possible to get divorced without a lawyer?
You can prepare your own divorce application and the necessary supporting documents and file them online with the court. However, by seeking legal representation and advice, you’re far more likely to ensure that your rights are protected when it comes to the financial aspects and, if you have children together, your parental entitlements.
What if we separated and then got back together and then separated again?
If you separated and then resumed your relationship for less than 3 months before separating again for good, you can ignore this reconciliation period. This only applies if the period during which you resumed the relationship was less than 3 months.
If any period of reconciliation was for 3 months or longer, the clock starts ticking again in terms of the requirement to be separated for 12 months before either of you will be able to file an application for divorce.
Does the court always side with women over men?
Australian Family Law is guided by principles of justice and fairness. For example, if there a dispute about the division of the assets of a relationship, the Family Law Courts consider a number of factors, including the non-financial and financial contributions of each party, the length of the relationship, who will have the main ongoing care of the children, each party’s current earnings and income earning capacity into the future, and health factors, amongst others.
In terms of parenting disagreements, the Family Law Courts primarily focus on what is in the best interests and welfare of the child.
Parenting and Child Support
How is custody of children decided?
Parents can agree on the parenting arrangements to be made for the children of their relationship. There is no fixed and inflexible rule about such arrangements. If they are agreed upon by both parents, the Family Law Courts will usually approve and formally make the orders.
If parties are unable to agree with whom the children will primarily live, what sort of time and communications they have with the other parent, or other such issues concerning the welfare and development of their children, the parties will first have to attend mediation (called “Family Dispute Resolution”) and if they still can’t reach agreement, one or the other can bring a court application seeking parenting orders.
How do I obtain custody of my children?
The term “custody” is no longer used by the Family Law Courts in Australia. When people talk about “custody” they are usually referring to who the children will primarily live with.
In determining the most suitable and appropriate parenting arrangements for the children of parties in dispute, the court’s paramount consideration is the children’s best interests and their overall welfare. The court considers a range of factors when deciding what is in a child’s best interests based on the history of the parents’ relationship, past arrangements that were in place, contributions made by each party towards the parenting of their children, if there are issues of violence or abuse, and many other factors.
The court will make orders about who children “live with” primarily (if not an equal time arrangement with both parents), the amount of time and circumstances in which they will “spend time with” the other parent, and who will have “parental responsibility” for making major decisions. The latter is usually ordered to be shared equally, though in certain circumstances of abuse and/or violence, the court may order that one party have sole parental responsibility.
Am I entitled to receive, or do I have to pay, child support?
Usually the parent with whom the children primarily live will be entitled to receive child support from the other parent. The amount and type of child support will depend on a number of factors, including how much overnight time throughout the year that the children spend with the non-primary parent, each party’s earnings, their respective capacity for work and level of income, health, and other factors.
The type of child support arrangements you enter into will depend mainly on your financial circumstances, but also on how well both parties are able to negotiate the terms of a child support agreement through their respective legal representatives. Otherwise, Services Australia will provide an administrative assessment of child support payable by one parent to the other upon receipt of an application submitted.
Can I relocate somewhere else with the kids?
It’s understandable that you want the freedom to get on with your life after a separation or divorce. You may have found a new partner who lives in another State or you may wish to pursue a career opportunity in a different city within Australia or even another country. However, if this relocation means that you will be moving your child a significant distance away from their other parent, then the situation becomes complicated.
The first step is to talk to the other parent to see if you can reach an agreement on the relocation. If you can’t agree, you will need to bring an application asking the court to determine this issue and the parenting arrangements to then be put in place for the shared care of the children with the other parent if you are successful in obtaining orders to relocate the children’s primary residence elsewhere with you.
What is involved in bringing a court application for parenting orders?
A parenting order is an order made by the Family Law Courts regarding parental responsibility, living arrangements for the children, as well as other relevant factors concerning their welfare and development that are in dispute between the parents. Parenting orders are binding and enforceable on all parties.
A parenting order can be made:
- By consent; or
- Through the determination of the dispute by the court
Prior to filing an application with the court seeking parenting orders, parties are required to attend Family Dispute Resolution (“FDR”). This is a form of mediation during which a third-party practitioner tries to assist the parties to reach agreement on the terms of a Parenting Plan for the children. There are exemptions to the requirement for parties to attend FDR, such as in situations of urgency or family violence or abuse.
If you satisfy the exemption requirements or you are unable to reach an agreement at FDR, parties can file an application with the Family Law Courts in which they seek parenting orders. Supporting documents will need to be filed together with the application, including an Affidavit (your formal statement detailing the relevant history and issues in dispute), and a notice regarding any issues of violence and/or abuse.
The matter will then be listed before the court, at which time interim orders will be made to advance the issues in dispute, with the matter ultimately determined on a final basis at a later date. Prior to the court making final parenting orders, evidence is gathered and presented. This usually includes an assessment by a counsellor, psychologist or psychiatrist by way of what’s called a “Family Report”.
Who will be given parental responsibility for children?
Usually the court will order that parents have equal shared parental responsibility for children, even if they are mainly living with one parent. If parents have equal shared parental responsibility, this means that decisions about long-term issues such as education, health, and religion must be made by the parents consulting one another and reaching agreement on these issues, as opposed to one party unilaterally making the decision.
In some cases, particularly where there is violence and/or abuse, the court will order that one parent have sole parental responsibility for making these major decisions for the children.
Property and Financial Settlement
How does the Family Court divide assets in property settlement cases?
In deciding how the assets of a married or de facto couple should be divided, the Family Law Courts adopt a 4-step process:
Step 1 – Identify and ascribe a valuation to all assets, financial resources and liabilities held by each of the parties. These include properties, business interests, superannuation entitlements, cars, savings, as well as assets held under a trust.
Step 2 – Identify the contributions made by each party towards the acquisition, preservation, improvement and maintenance of the assets. These include not only financial and non-financial contributions, but also in the capacity of parent and homemaker.
Step 3 – Determine whether any adjustment is required to the legal interests held by each party to factor into consideration issues such as their respective future needs, the care of children of the relationship, the disparity in income earning capacity, health, age, and availability of financial resources.
Step 4 – At the end of this assessment process, the court then takes a step back and assesses whether the proposed asset division is just and equitable or if any further adjustment to the legal entitlements of either party is necessary.
Spousal Maintenance
What is spousal maintenance?
Spousal maintenance is a separate entitlement to child support. There is no requirement for children to be involved in order for one party to have an entitlement to payments of spousal support from her or his estranged or former partner.
Spousal maintenance can be a one-off lump sum payment or an ongoing recurring payment made by one party to the other party for the financial support of the receiving partner. There is no automatic entitlement to spousal maintenance.
A court will only make an order for spousal maintenance if there are satisfactory grounds to do so, including that the receiving party is unable to adequately support herself or himself after separation due to factors such as the care of children of the relationship, age, health, incapacity for work; and that the other party has the capacity to provide such support. The circumstances of each relationship will be looked at closely by the court when determining this issue.
Does spousal maintenance apply to de facto couples as well?
Yes, the court can order maintenance to be paid from one partner to another when a de facto relationship breaks down provided that the de facto relationship lasted at least 2 years, and the other grounds are established as detailed above.
Do I need to be divorced before I have a property settlement?
No, you can finalise your property settlement any time after you separate – you do not need to wait until you are divorced. If you have not finalised your property settlement by the time of your divorce, you need to do so within 12 months of your divorce order made by the court becoming final. This is because there is a time limit of 12 months to start court proceedings seeking orders for property settlement and/or spousal maintenance from the date that a divorce order becomes final. The court can give permission to start proceedings after this 12-month period in certain circumstances, but you should not assume that such leave will automatically be granted.
Same-Sex Relationships
Same-sex married and de facto couples are now essentially treated in the same way as heterosexual couples in terms of the formal division of their property, and the necessary parenting arrangements to be made for the children of their relationship, though there still remain some differences, particularly in terms of how the law treats certain children of a same-sex relationship.
The Marriage Act was amended in 2017 to redefine marriage as “the union of 2 people to the exclusion of all others, voluntarily entered into for life.” The effect of this amendment was to allow same-sex couples to marry in Australia and have their union legally recognised, as opposed to previously being treated under separate provisions dealing with de facto couples.
Please refer to our Same-Sex Relationships page on this site for further information.
Alternative Dispute Resolution
Overview
ADR refers to any means of settling disputes outside of the courtroom through negotiation. This includes where a mediator (an independent third party specially trained in helping two parties reach an agreement) facilitates communications between you and your former partner in the hope of reaching an agreement.
ADR is faster, better, and less expensive than litigation. It is faster because it avoids discovery and the long litigation process. It is better because it provides a choice of remedies. And it is, for these reasons, less expensive.
During a Family Law mediation, you and your former partner and your legal representatives will discuss all aspects of your dispute, including property settlement and arrangements for the children as well as other relevant issues with a view to settling the matter prior to either party commencing court proceedings.