Separation & Divorce
Separating from your partner is tough, whether you are married or have been living in a de facto relationship. There are many considerations such as where you will live, how you will split your assets, and significantly, the ongoing care arrangements for your children.
We can help you with the legal aspects of separation and divorce, providing guidance through the complex and often misunderstood laws, and helping you and your family move forward.
Getting a divorce in Australia
In Australia, a divorce application is a separate process to property or parenting matters and a finalised divorce is not required before sorting out financial and children’s arrangements. Divorce orders are made by the Federal Circuit and Family Court of Australia. An application and supporting documents will need to be filed, and in most cases, you will not need to attend court.
The requirements to obtain a divorce is that the marriage has broken down irretrievably and there are no reasonable prospects of the parties getting back together. Before making the application, you must have been separated for at least 12 months, but separation need not necessarily mean that you and your ex-partner have lived in separate residences. The court will take these circumstances into account.
If you have children under the age of 18 years with your former partner, the court will need to be satisfied that proper arrangements have been put in place for their care. Generally, a divorce will be finalised approximately one month after the divorce hearing takes place.
After a divorce has been granted there is a 12-month limitation period within which to bring court proceedings for property settlement or spousal maintenance.
Separation for de facto partners
Family law legislation also applies to de facto couples whose relationship has ended. For a couple who was not legally married to access remedies under family law legislation, various factors will be considered to determine whether they were in a de facto relationship. If you have recently separated from a de facto partner our experienced lawyers can provide advice about the next steps.
Practical steps after separating
Working through the practicalities of separation can be difficult when there is a great deal of emotion involved. Following are some steps you might like to consider.
- Keep your children’s best interests in mind – try to put differences aside to work out arrangements that will cause them the least disruption and, where possible, foster a meaningful relationship with both parents.
- Prepare a list of assets and liabilities – property, shares, investments, bank accounts, superannuation, mortgages, and loans.
- Obtain originals or copies of important documents like passports, marriage certificates, birth certificates and insurance policies.
- Keep a journal to record events and timelines, for example, the date that you separated.
- Ensure that your property (your home, other real estate, motor vehicles, boats, etc.) remains insured.
- Update passwords and login details for online banking accounts, email, and social media platforms, etc.
- Contact Centrelink – Services Australia to find out if you are entitled to government or other assistance.
- Contact your bank to discuss joint loan and savings accounts, credit cards, or any other aspect of your everyday banking.
- Get legal advice to protect your interests and review or make a new Will.
Why should I get legal advice?
Whether your separation is on good terms or not, getting professional advice is important to help you understand your legal rights and obligations.
An experienced family lawyer can steer you through the process of settling your financial affairs and help you to make parenting arrangements that are in the best interests of your children. Most family lawyers will recommend negotiating a property settlement that is fair and reasonable and avoids the need for expensive and traumatic court proceedings. Informal agreements are generally not binding and cannot be enforced. The formal division of your assets in legally binding and compliant terms will help protect both parties from future claims and may facilitate access to certain duty exemptions when transferring assets such as real estate.
If you need assistance, contact [email protected] or call 03 9546 8155 for expert legal advice.