Separation and Divorce
What is separation?
Separation occurs when a married couple commence living separately and apart. Sometimes a married couple can be deemed to be separated even though cohabitation was brought to an end by the action or conduct of only one of the spouses. In certain circumstances, a married couple can be considered to be separated despite still living in the same residence.
A de facto relationship is considered to be at an end when the parties are no longer living together on a genuine basis. There are a number of factors that determine this, not just whether you are still living in the same household.
There is no official documentation required to separate, but in some cases you may need to apply to the court for a Separation Order. We recommend you seek our advice if you are contemplating separating from your spouse or partner.
Once you are separated there are several matters that will need to be dealt with. These include, but are not limited to, making arrangements for your children, if relevant, advising various government agencies (Centrelink, Medicare, etc.) and sorting out your financial affairs.
If you have recently separated, we recommend making an appointment with us as soon as possible so we can help you sort through the legal and practical aspects and ensure that your legal rights are protected. We will also diarise significant dates as these will be important considerations in your family law matter.
How can we help?
Family law matters involve a range of intricate and complex issues. We help clients deal with these issues with a focus on resolving their family law problems in a timely, cost-effective and dignified manner.
We provide the full spectrum of family law services, including:
- Alternative Dispute Resolution including mediation and collaborative law
- Property settlements for married, de facto and same-sex couples
- Binding financial agreements for married, de facto and same sex couples
- Superannuation splitting orders
- Spousal maintenance
- Child support including limited and binding child support agreements
- Parenting matters – care arrangements, parental responsibility, relocation, overseas travel
- Consent orders for property or parenting issues
- Protection from Domestic Violence
- Child protection and child abduction including Hague Convention proceedings
- Surrogacy agreements, adoption and paternity issues
- Court representation for a range of family law issues including applications for interim parenting and property orders, child relocation orders, and injunctions.
Applying for a divorce in Australia
Australia has a no-fault divorce system. You can apply to the court to end your marriage without the need to prove who was to blame for your separation.
Applications for divorce may be made individually or jointly with your spouse. Usually, you will not need to attend court if the application is made jointly, or if it is made individually and there are no minor children of the marriage. The court must however be satisfied that appropriate arrangements are in place for the care, welfare and upbringing of any children under 18 years.
Applications may be made online. A filing fee will apply, and the application must include a copy of the marriage certificate. At least one of the parties must be an Australian citizen or resident. If the marriage certificate is not in English a certified translation must also be filed.
What are the requirements for granting a divorce?
Before granting a divorce, the court must be satisfied that:
- the marriage has irretrievably broken down;
- the parties have lived separately and apart for a continuous period of at least 12 months; and
- there is no reasonable likelihood the parties will resume living together.
If you have been married for less than two years at the time you intend filing your application for divorce, and unless extenuating circumstances exist, you and your spouse will need to attend counselling and provide a certificate confirming that you have considered reconciliation. The certificate is filed with your divorce application.
What does living separately and apart mean?
There are reasons why you and your spouse may be ‘technically’ separated but continue living under the same roof. The court acknowledges this situation, which can arise due to financial reasons, the care and responsibility for children, or religious or cultural reasons. In such cases you can still file a divorce application which must include details of your particular circumstances and corroborating evidence of these circumstances from someone who has first-hand knowledge of the living arrangements.
Children of the marriage
A child of the marriage includes any child of you and your spouse, whether born before, during the marriage, or after separating; an adopted child of you and your spouse; or any child treated as part of your family prior to your separation, for example a foster child or stepchild.
If there are minor children of the marriage, the application must include particulars of their health, housing, schooling and care arrangements as well as details of the contact they have with each parent and any financial support provided.
If there is a child of the marriage under 18 years, a sole applicant will need to attend court to answer any questions regarding the care of that child.
What happens after the divorce is granted?
If the application is approved, the court will grant a ‘decree nisi’ and the divorce automatically becomes final one month later (decree absolute).
It is not necessary for you to wait until a divorce application is made or finalised before settling the division of your property. The granting of a divorce however triggers a 12-month limitation period within which to commence court proceedings for property settlement or spousal maintenance if you and your spouse are unable to reach agreement on these issues.
For de facto partners, any court proceedings for a property settlement must be commenced within 2 years ofthe relationship ending.
It is therefore important not to put off thinking about your property matters and negotiating a division of assets with your spouse or ex-partner.
Separation and divorce could also affect the terms of an existing Will, so it is important to discuss this with your lawyer so you can make or review a Will and update other important documents like powers of attorney.
We practise predominantly in family law and have expertise across all areas of family law issues, with experience in both Australian and New Zealand jurisdictions. We understand the impact and emotional upheaval that separation has on individuals, children and extended families. We are insightful, sympathetic, and transparent, offering sound advice and workable solutions for all family law matters.