Family Law Frequently Asked Questions

Make a note of the date of separation even if you and your partner remained living under the same roof following separation.

Both you and your partner will be required to make full and frank financial disclosure as part of any property settlement proceedings. Start a folder and collect you and your former partner’s recent Superannuation statements, bank account statements, tax returns, share certificates and other documents you think are relevant.

Make an appointment to see one of our Family Law Lawyers.

You may wish to contact Government Services such as the Family Relationship Advice Line.

Technically, the person who is legally entitled to the home. This is the homeowner or the tenant on the Residential Tenancy Agreement.

If both parties are jointly entitled to the home, then both parties are legally entitled to stay in the property after separation. Both parties may then choose to live in the property together, “separated under the one (1) roof”. This arrangement is usually difficult and stressful, so one (1) person will generally live in the house alone, by agreement or by obtaining a Court Order for the other person to leave.

Family Court proceedings are commenced by using an Initiating Application form. An Initiating Application contains details of your matter including the interim and final Orders that you are seeking.

Contact us as soon as possible to discuss your circumstances and make an appointment to see one of our Family Law Lawyers.

You will be required to attend Court on the date stamped at the top right hand corner of the Application.

You will also be required to file a Response and Affidavit and serve a copy on the other party at least 7 days before the first Court date. Any information set out in your Response and Affidavit can be used in future Court hearings.

Most people presume that unless you have lived together for 2 years you are not a de facto couple. This is not true. Living together is only 1 of 9 factors the Court considers when determining whether parties have been in a de facto relationship. Other factors include, the length of cohabitation, if the parties are registered as a de facto couple, if they have a child together and if they have shared finances.

For example, if you have a child together and have been together for less than 2 years you will be considered a de facto couple under the Family Law Act.

Technically, the person who is legally entitled to the home is the home owner or the tenant on the Residential Tenancy Agreement. If both parties are jointly entitled to the home, then both parties are legally entitled to stay in the property after separation.

Both parties may then choose to live in the property together and be “separated under the one roof”. However, this arrangement can be difficult and stressful, so one person will generally live in the home alone, by agreement or by obtaining a Court Order for exclusive occupation of the home.

Legally each person has to continue to pay the debts in their name (including one-half of joint debts) until there is agreement or Court Order changing this. It is, however, not uncommon for one party to refuse pay their half of joint debts to put pressure on the other party to pay them, or risk default.

If you are unable to meet your reasonable needs, you should seek advice in relation to making an Application for Spousal Maintenance.

If there is any dispute about Child Support, an Application should be made to the Child Support Agency for an assessment of Child Support required to be paid by one parent to the other.

Often it is not necessary to go to Court. Many separated couples reach agreement by themselves or with the help of Family Lawyers without going to Court. There are processes including Negotiation, Mediation and Arbitration which help to resolve disputes between couples without the need for Court.

How long do I need to wait to apply for:

• Divorce – 12 months and one day after separation.
• Parenting Orders – immediately after separation, though keep in mind that unless you are exempt, there is an obligation on parents to attempt to participate in Mediation prior to bringing an application to the Court.
• Property Division – immediately after separation.
• Spousal Maintenance – immediately after separation.
• Child Support and Centrelink – immediately after separation

You may be disadvantaged if your ex-partner is able to access your information and finances after separation. As soon as possible after separation, you should take the following steps to ensure your privacy and accountsess are protected as much as possible:

• Change your password for your email account(s) (or create a new email account for sensitive correspondence about your Family Law matter),
• Change your password for online access to your bank account(s) and social media accounts, including Facebook, LinkedIn, Twitter and Instagram, and consider blocking/limiting content available,
• Ensure that any joint bank accounts, loans, credit sources, memberships, etc. require joint signatures/approval from both you and your ex-partner for any benefits to be accessed or changes to be made, and
• Ensure that schools, childcare and/or extra-curricular activity providers have been informed of your separation.

Where your ex-partner earns or has more money than you, you may be able to get access to additional funds from them, for a few months after separation or longer term. This might be in the form of:

Spousal Maintenance: a periodic or lump sum payment from the partner with more money to the partner with less money to assist with their costs of living.

Litigation funding: a payment from the partner with more money to the partner with less money to assist with legal fees.

Child support: a periodic payment from one parent to the other to assist with the costs of child/ren. The amount payable is assessed by the Child Support Agency based on a number of factors including how much money each parent earns and how many nights the child/ren spend with them.

You can also minimise your expenses after separation by:

• Not paying any bills unless you are named on them,
• Making sure that you pay only your half of bills in joint names, and
• Staying in the home you own rather than leaving for a rental property.

If you have been living separately and apart from your spouse for a continuous period of not less than 12 months, you can make an application for a divorce.

If you have been living with your spouse, but separated under the one roof, you can still apply for a divorce if it has been not less than 12 months since you, or your husband/wife, communicated and acted on an intention to separate. The breakdown of the relationship must have been substantial.

The sole ground for Divorce in Australia is ‘irretrievable breakdown’ of the marriage. This is proven by the parties to a marriage being separated and living separately and apart for a continuous period of not less than 12 months. So your ex-spouse can argue about when you separated however they cannot argue that the divorce shouldn’t be made because they want to remain married.

If you file a joint application with your spouse, your Divorce hearing will be listed at least 28 days after the date of filing.

A sole application (i.e. where the application isn’t filed by both parties to the marriage) will be listed at least 42 days after filing if the respondent is in Australia and at least 56 days after filing if the respondent is not in Australia.

If the application is not made jointly, you will need to prove to the Court that the respondent has been served with a copy of the application. If service has not been effected, the Court will be unable to make the Divorce Order and the matter will be adjourned to allow you to properly serve the other party.

The Divorce Order will take effect one month and one day after the Order is made.

No, a Property Division must be dealt with separately from Divorce. However, a Divorce Order triggers the limitation period for applying to the Court for Property Division Orders.

We offer a Fixed Fee Application for Divorce package, find out more here.

No, a divorce does not mean that assets are split 50-50, in fact often this is not the case.

The Family Law Act 1975 requires the parties take into account a variety of considerations, including:

• Each of the parties financial and non-financial contributions to the relationship,
• The length of the relationship,
• The future needs of the parties,
• The construction of the matrimonial asset pool,
• What is ‘just and equitable’.

This means that you will often need the assistance of a skilled Family Lawyer to assess what you and your partner are entitled to.

There are many factors which must be considered when dividing up matrimonial assets.

All assets in the name of either party bought to a marriage in Australia are included in the matrimonial asset pool.

This means that even if the house is not in your name you are still entitled to a property settlement.

There are many factors which need to be considered when dividing up the asset pool including the financial and non-financial (such as child rearing or homemaking) contributions of each of the parties.

In our experience most divorce settlements take around six months to a year.

If you attend Court they can take up to two (2) or even three (3) years from the time the Court proceedings commenced.

No, many separated couples reach an agreement about dividing their assets by themselves, or with the help of Family Lawyers without going to Court.

If you and your former partner are able to reach agreement an experienced Family Lawyer can formalise this for you.

If you are unable to reach agreement new Court rules require parties to attend mediation. Mediation is a cost-effective process where parties can discuss and negotiate a property settlement with the assistance of a qualified mediator and their legal representatives.

If you are unable to reach agreement through mediation you can then commence Court proceedings.

Depending on the nature of your assets and liabilities, there are often many options available for how you achieve a division of property with your ex.

Often parties enter into negotiations with a goal in mind regarding what they do or do not want to keep. Once you have received legal advice about your likely range of entitlements, you should obtain advice from your Financial Planner and/or Mortgage Broker to see if your idea for the perfect settlement is realistic.

For example, depending on the size of your asset pool, if you really want to retain your house, you will need to work out how much you can borrow. You should keep in mind that you may need to refinance the entire balance of your Mortgage (if you have one) and potentially pay a lump sum of money to your ex-partner as part of a Property Settlement. It is important to work this out prior to coming to an agreement.

You should also be aware of any taxation issues which may flow from a proposed Division. For example, if you plan to sell an investment property to facilitate a settlement, you need to seek advice from your accountant in relation to any potential Capital Gains Tax liabilities.

A Property Division will almost always be necessary where property (e.g. the family home) is owned in the joint names of the parties.

It is always necessary to formalise a Property Division after separation (even where ownership of assets does not change) to avoid one party making a later claim even several years after separation. This can be done by way of Consent Orders or a Binding Financial Agreement under the Family Law Act 1975.

Our Family Lawyers will advise you about which option is best for you and if you are happy to go ahead, draft a Binding Financial Agreement or Consent Orders, which are binding and enforceable.

Because the family business forms a part of the property pool, it is important that you know its value.

Simple business structures such as those operating as a sole trader can be relatively simple to value, however as business structures increase in size and complexity the nature of the business valuation becomes more complex.

If you or your spouse intend to retain the family business, we will link you with expert business valuers who will conduct a formal valuation of the business.

When it can be established that:

1. There would be hardship to you or your child if the Court’s permission is not granted, and
2. There is an adequate explanation for the delay.

Hardship may be established by showing the Court that, if you are not given permission to make a claim, you will lose a significant sum of money. However, hardship is not established where the legal costs of pursuing the claim outweigh the likely outcome.

An adequate explanation for the delay may be that:

• You did not have the benefit of legal advice and were not aware of the limitation period,
• Your ex-partner continued to maintain you so you had no reason to pursue a Property Division claim until this financial support was withdrawn, or
• You were suffering a period of illness until after the expiration of the limitation period that prevented you from making a claim.

You must establish both hardship and an explanation for the delay to get the Court’s permission to make a claim out of time. This can be difficult to achieve and, if you are unsuccessful, there is a risk that you will be Ordered to pay a proportion of your ex-partner’s legal fees.

Even where an inheritance, or another large lump sum, is received after separation it is still included in the property pool available for division between you and your ex-partner. However, given that the inheritance was received after separation, your ex-partner is generally not going to have made post separation contributions of similar significance and, therefore, you are likely to be entitled to the majority, if not all, of the inheritance.

The inheritance is at risk, however, where the property pool is very small and there are minimal other assets to divide between the parties. In this case, part of your inheritance is much more likely to be divided in favour of your ex-partner than if there were other assets to provide for them.

A property settlement is legally binding only if it occurs pursuant to a Binding Financial Agreement or Consent Orders.

If you decide to informally document your property settlement you should be aware that your former partner can change their mind and apply to the Court for a property settlement that is different to the one agreed to. If your partner’s financial circumstances change, for example, they are diagnosed with an illness or they are no longer able to work, they may be entitled to more of the assets even though the circumstances did not exist at the date of separation.

Married couples that separate can formalise a Property Settlement at any time after separation. There is no requirements that the parties need to be Divorced at the time of the Property Settlement. However, once parties are Divorced there is a 12 month limitation period that applies. This means if you are not able to reach an agreement with your separated spouse, you need to file an Initiating Application with the Court before the 12 month limitation period expires.

For de facto relationships there is a time limit of 24 months after the date of separation.

Some exceptions apply to these limitations, however, you should assume that the limitation period will not be extended. It is, therefore, important to speak to a Solicitor about negotiating a property settlement or filing Court proceedings before the time limitation period runs out.

A Binding Financial Agreement is an agreement entered into before, during or after a relationship. If a Binding Financial Agreement exists the Court will not have the power to make an Order affecting the matters covered by the Agreement. As a result, a Binding Financial Agreement will only be binding if it includes proper financial disclosure of the parties’ circumstances and attaches Certificates from independent Solicitors certifying that the parties have been advised of the advantages and disadvantages of entering into the agreement.

In some circumstances a Binding Financial Agreement can be set aside by a Court. As such, Consent Orders are preferable where available.

Under the family law rules, each party to a Family Law Property Settlement has an obligation to provide full, frank and financial disclosure of their financial interests. This obligation of disclosure extends to any business interests the parties might have. You will need to provide your ex-partner with business documents such as any trust deed, shareholders agreement, BAS statements and financial statements.

Where your ex refuses to provide disclosure, it may be necessary to start Court proceedings to obtain the relevant documents under subpoena.

If you have any reason to fear that your ex-partner may:

• Remove matrimonial property from Australia, and/or
• Sell, transfer or otherwise deal with matrimonial property, without your consent and before your Family Law matter has been resolved. A Court Order (called an Injunction) should be sought on your behalf to prevent such dealings with the matrimonial property. Please provide us with your immediate instructions should you have any such concerns regarding the matrimonial property.

Parties can have a partial property settlement by agreement. This may be appropriate in circumstances where parties are in need of funds and are still in the process of negotiating a settlement or parties have applied to the Court and a final hearing is not for a considerable amount of time.

If one of the parties is not willing to agree to a partial property settlement, the other party can apply to the Court for an interim Order. For example, if you need access to funds in a bank account for living, housing or legal costs. However, the Court will not make an Order for a partial property settlement unless it is satisfied that it is appropriate in the circumstances.

Yes. If your de facto relationship can be classified as a de facto relationship under the Family Law Act, and you meet the requirements for Spousal Maintenance under the Act, you may be entitled to Spousal Maintenance.

Yes, generally your entitlement will be reduced as your ex-partner will make an Application to the Court to reduce how much Spousal Maintenance they must pay to you on the basis of your increased income.

No, Spousal Maintenance is not considered taxable income.

Yes, you must inform Centrelink of any entitlement to Spousal Maintenance. Spousal Maintenance is not included by Centrelink in assessing income support, however, it is included in the assessment of family payments.

Unless you and your ex-partner can agree, you will need to make an Application to the Court for a Spousal Maintenance Order. This can be a costly Application to pursue so must be considered carefully.

You may be entitled to Spousal Maintenance if you can prove that you do not have the capacity to earn enough income to support yourself properly. However, choosing not to work or to exercise a capacity to earn sufficient income will not entitle you to Spousal Maintenance.

Further, you will be unlikely to get an Order for Spousal Maintenance if you have sufficient resources (other than income) to support yourself, such as access to a savings account or other assets.

The first step in establishing whether or not you may be entitled to Spousal Maintenance payments is to overcome the ‘threshold test’ which asks 2 questions:

1. Are you unable to ‘adequately support’ yourself on your income; and
2. Is the other party ‘reasonably able’ to pay you?

If it is determined that you are not able to ‘adequately’ support yourself and that the other party is ‘reasonably’ able to pay you, then the Court will give consideration to the extent to which your ex-partner should reasonably be expected to support you, i.e. how much should they pay you? This will ultimately involve an examination of your living expenses and those of your ex-partners.

In determining the amount of Spousal Maintenance to be paid, the Court will give consideration to a standard of living that is reasonable in all the circumstances. However, “reasonable” does not necessarily mean the standard of living enjoyed prior to the breakdown of the relationship.

If the Court determines that your ex-partner should pay you Spousal Maintenance, it will then give consideration to how much your ex-partner should reasonably have to pay you. This ultimately involves an examination of his/her income and expenses.

Immediately after separation. Spousal Maintenance may be paid:

• On an urgent basis until resolution of the Property Division,
• As a lump sum at the time of the Property Division, and/or
• Periodically for a number of years following the Property Division (however, this is unusual).

Yes, the Court can make interim Orders in relation to property and children’s matters at any time. An interim Order is an Order made before the final determination of an Initiating Application.

For example, a party may apply to the Court for an interim Order to decide where a child lives until such time as a final hearing. Other examples include applying to the Court for urgent Spousal Maintenance or injunctions to prevent a party from disposing of assets.

Parenting Arrangements may develop naturally and easily from the time of separation, or with the assistance of Family Lawyers, a Mediator or by an Application to the Court for Parenting Orders.

Each party may provide evidence in the form of an Affidavit in relation to the best interests of the child. In order to get a complete picture of the child’s best interests, if there is a high degree of conflict and/or allegations of risk, an Independent Children’s Lawyer may be appointed by the Court. Their role is to represent the best interests of the child(ren).

The Court may also make Orders for the preparation of an Expert Report to assist the Judge in determining what Orders are in the best interests of the child(ren).

If the Court considers that an Order for equal shared parental responsibility is in the best interests of the child(ren), it must consider whether or not it is in the child(ren)’s best interests to spend equal time or significant and substantial time with each parent. If the Court makes Orders for one parent to have sole parental responsibility then there is no such requirement.

Whilst “equal time” is self-explanatory, “significant and substantial” time is defined as days which fall on weekdays, weekends, holidays and days which are of special significance to the parent and child. The intention is to allow the parent to be involved in the child’s daily routine and vice versa.

The Court must be satisfied that it is both reasonably practicable and, in the children’s best interests to spend either equal, or significant and substantial time.

When considering whether the proposed time arrangement is “reasonably practicable” the Court is concerned with the reality of the situation for the parents and the children and requires a practical consideration of whether the proposed Parenting Order is feasible. Such consideration takes into account the distance between the parents’ households, their ability to facilitate such an arrangement and how well the parents are able to communicate with one another.

In Australia there are three main ways to have a Parenting Agreement:

Orders made by the Court.

• These are legally binding and enforceable.
• Orders can be made by agreement which are Consent Orders and there is no Court appearance required, or can be made by a Court because Court proceedings had occurred.

A Parenting Plan.

• A written, signed and dated agreement that is not legally enforceable but is considered by the Court if Court proceedings occur.
• A Parenting Plan can be easily updated and amended as children get older.

An informal agreement.

• In writing or verbally agreed between parents.
• While this offers flexibility this is not legally binding.

The type of Parenting Agreement you need, depends on your individual family and the co-parenting relationship.

A Parenting Agreement should cover all important matters in relation to your children.

It should include:

• How decisions are to be made,
• The time that children spend with parents and how this will occur,
• Arrangements for special occasions,
• Arrangements for school holidays,
• Methods of communication.

When negotiating your Parenting Agreement remember to consider the longevity of the agreement, including what is important to you in how you raise your children.

A Parenting Plan is not a legally enforceable agreement. This means that if a parent does not follow a Parenting Plan you cannot ask the Court or the police to enforce it. However, it is likely to be taken into consideration by the Court in working out what you each considered to be workable and appropriate Parenting Arrangements.

In non-urgent matters you should try and speak with your former partner and participating in Mediation may help you reach a new Agreement.

If your former partner continues not to follow the Parenting Plan, you may want to consider engaging a Solicitor to formalise your agreement as Consent Orders which are legally binding and enforceable.

A Solicitor can give you tailored advice about the options available.

Until the Court makes an Order both parents can make decisions in relation to a child, even if the child is not living with them.

The Court can make an Order deciding if both parents have equal parental responsibility or if one parent will have sole parental responsibility. There is a presumption that equal parental responsibility will apply unless the presumption can be rebutted by factors such as a family violence.

The Court can also divide responsibilities. For example, one parent may have parental responsibility in relation to a child’s schooling and the other parent may have parental responsibility in relation to a child’s medical concerns. Parental responsibility relates to major long term issues but not issues such as haircuts, packing lunches, appropriate discipline measures or other day to day activities.

Where parties can agree to the living arrangement of a child they can enter into a Parenting Plan or file Consent Orders with the Court.

If a child under the age of 18 is predominantly living with you, you should make contact with the Child Support Agency.

If you are applying for a Divorce, a brief summary of the arrangements in relation to children need to be set out in the Divorce Application. You may also be required to appear in front of the Family Court Registrar to provide evidence that the proper arrangements have been made for children under the age of 18. Examples of proper arrangements are informing the Registrar of the child’s living arrangements, schooling and child support payments.

Not so far that it makes it significantly more difficult for you to spend time with your child, otherwise, your ex must have your consent. Therefore, international and interstate relocations almost always require the other parent’s consent, whereas, relocations of an hour may or may not require the other parent’s consent, depending on how much it interferes with the other parent’s time with the child.

Yes, if there are no parenting Orders and your ex has a valid Passport for your child. If you are concerned about your ex taking your child overseas without your consent, you should immediately apply for parenting Orders. Once you have made the application, regardless of whether the Orders have been made, your ex cannot take your child overseas without your consent or they risk imprisonment of up to 3 years. Your Court application should also include an Order for for your child’s name to be placed on the Family Law Watch List which will result in your child being stopped at an airport or port from being removed from Australia.

Sometimes parents choose to retain their children for good reason. See our Relocation page for more information.

If you are moving to the neighbouring suburb and can continue to facilitate the same time arrangement between your child and the other parent, then there is no basis for the other parent to oppose your move.

Unless the other parent of your child/ren agrees to you relocating with them, you cannot make changes to your child’s living arrangements that make it significantly more difficult for them to spend time with the other parent.

Therefore, you can relocate the child’s residence to a different house, but not such a distance away from your current house that it will be significantly more difficult for the child/ren to spend time with the other parent. In practice, this means that it is likely to be acceptable for you to move the child/ren’s residence to the next suburb, but not more than about 30 minutes away from your current home.

Please note the relevant residence is that of the child and not of you. Therefore, you can move as far away as you want, but not with the children, unless the other parent consents. If you choose to move far away from the child/ren, their time with you is likely to be limited due to the distance.

Moving a child’s residence (with your own change of residence), particularly interstate or overseas, can have the effect of reducing the child’s time with the other parent so significantly that they cannot enjoy the benefit of a meaningful relationship with that parent. Whether or not you are permitted to do so is determined in the child’s best interests and the outcome is dependent on the circumstances of each case.

Factors including a parent’s need to return to their native country for family support or increased work opportunities in the proposed new location can be circumstances that are sufficient for relocation to be approved by a Court, however, this is usually on the basis that a meaningful relationship can be continued with the other parent through additional holiday time and frequent communications.