Separation & Divorce

If you are separating from your de facto partner or spouse, there will be many legal and practical decisions to make. You will need to work out who will leave the home you have shared, how your finances should be split and, if you have children, what arrangements should be made for their ongoing care. These decisions encompass short-term and long-term considerations and have a significant impact on you and your family. Regardless of your situation, our family lawyers are here to help guide you through the process of separation with expert legal advice.

Separation

Separation is when one or both partners have decided that their relationship has come to an end. You can decide to separate from your partner even if they do not agree, and you do not need anyone’s permission to separate.

You should advise organisations such as the Department of Human Services (DHS) Centrelink, Child Support and Medicare (whichever is applicable to your situation), that you are separated from your partner. You can also tell your family and friends.

Arrangements should be made for any children of the relationship, for example where the children will live (at least in the short term) and how often they will spend time with the other parent. All arrangements should be made in the children’s best interests.

Separated couples also need to determine what will happen with their property and finances and how their assets will be divided, including: bills, debts, joint bank accounts, superannuation, and insurance. You should review your banking arrangements and talk to your financial institution about shared loans and bank accounts.

Getting legal advice

When relationships break down, we often start out hoping to be able to settle matters informally and privately. In some cases, separating couples can agree on what is best for everyone. More commonly, agreement is not reached in private or the wheels fall off negotiations part way through. Unfortunately, some private agreements are inherently unfair, and any power dynamics of the old relationship may continue to play out.

Seeing a family lawyer can help you to understand your rights and the implications of any proposed arrangements you are considering. Even if you and your ex-partner are on good terms, it is important to have any agreement reached regarding your property put into writing and be advised on whether it is a fair outcome for you and your children.

Getting a divorce

Divorce is the legal end of a marriage. A divorce is not the same as a property settlement. These are two different processes.

If you want to get divorced, you will need to file an application with the Federal Circuit and Family Court of Australia. You can make the application individually, or jointly with your ex-spouse. You do not need your ex-spouse’s permission or agreement to individually apply for a divorce. A divorce application can be made if your marriage has broken down irretrievably and it is unlikely that you and your spouse will get back together. You must have been separated for at least 12 months. The court may grant a divorce order in circumstances where you and your spouse have technically separated but continue to reside under the one roof for financial reasons or to care for the children, etc.

If you have children under the age of 18 years, the court will need to be satisfied that proper arrangements have been put in place for the care of those children.

Generally, a divorce will be finalised 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 a property settlement or spousal maintenance.

If you have separated from your partner or are seeking a divorce, our experienced family lawyers can provide advice about the next steps.

If you need any assistance, contact one of our lawyers at [email protected] or call 1300 704 064 for a no-obligation discussion and expert legal advice.