Separation & Divorce Legal Services

SEPARATION

The Family Law Act establishes separation as the sole and necessary ground to establish that a marriage or a de facto relationship has irretrievably broken down. Separation is not a step or an action that involves any legal notification or registration under the Family Law Act; separation is treated as a question of fact that must be proved if it is later disputed by the other party.

Separation should be noted at the time it occurs and confirmed in writing between the parties, so that it can be proved if necessary in later property settlement or divorce proceedings. This is especially relevant where the separation is not mutually agreed, and one party later disputes the date of separation or that separation in fact occurred. Separation can be under the same roof and can occur as a gradual process over time. However, in such cases, a court will likely look to corroborative evidence and consider a number of factors to establish and decide when and if separation has actually taken place.

Where a de facto couple has separated, the issue of timing may be especially important. If the separation occurs less than 2 years from the commencement of the de facto relationship, then a court may lack jurisdiction under the Family Law Act to make a property settlement order, unless other qualifying conditions apply.

Separating couples are likely to need to make immediate decisions on practical issues including:

• Where any children will live;
• How much time the children will spend with each parent;
• Arrangements needed for financial support of the children;
• The division of pooled property and money and the payment of debts; and
• Whether spousal maintenance is to be paid.

There are decisions to be made in separating which are important, and uninformed decisions and short term arrangements can have long term legal consequences. It is important that you seek legal advice either before you separate, or as soon as possible after you separate, so that you can be fully information in making those decisions.

DIVORCE

The Family Law Act does not take account of the causes of marriage breakdown in divorce applications. It only requires that the marriage has broken down irretrievably.

Irretrievable breakdown is proven by a 12 month separation of the parties. If you are married and you have been separated for at least 12 months, you can apply to the Family Court or Federal Circuit Court for a divorce.

If you have been married for a period of less than two years, you will normally require a counselling certificate before applying to the Court for a divorce.

If you have children, the Court has to be satisfied that you have made proper arrangements for your children's welfare before granting a divorce.

Divorce marks the legal end of your marriage, but does not deal with parenting matters, child support, the division of property and money, or spousal maintenance. These issues must be dealt with separately.