If you have recently separated, it can be challenging trying to sort out new plans moving forward. There will be various practical and financial considerations, and, if you have children, they will likely face big adjustments in their daily routines and living arrangements. Understanding your legal rights and getting help from the start can make a big difference in working out what’s best for you and your family and settling any issues efficiently.
We are experienced and compassionate family lawyers who have heard many sides of a separation story – we will listen to yours and provide sound advice to ensure your rights are protected and that you and your family can achieve fair and equitable outcomes.
Separating from your partner – what next?
The Family Law Act in Australia governs matters relating to marriage and divorce, and the care of children and distribution of property after a relationship breaks down. The Federal Circuit and Family Court of Australia has the power to make orders relating to these matters if the parties cannot resolve issues themselves. Fortunately, many post-separation arrangements can be negotiated and finalised without having to go to Court, often with the assistance of a neutral third party such as a mediator, and the parties’ respective lawyers.
You can start settling your property and financial affairs as soon as you separate. You do not need to be divorced. However, there are limitation periods that you need to be aware of if you do apply for a divorce and have not yet sorted out your property and financial matters between you and your former spouse.
Divorce is the legal end of a marriage, and in Australia, it is based on a no-fault principle. After 12 months of separation, with no likelihood for reconciliation, your marriage is considered to have suffered an ‘irretrievable breakdown’. Accordingly, after you have been separated for 12 months, you can file an application for divorce through the Federal Circuit and Family Court of Australia. Applications can be filed individually or jointly. If you make a sole application for divorce, you will need to serve the application on your spouse. Same-sex couples are treated the same as other married couples and can apply for a divorce in the same way.
If you have children under the age of 18 years, the Court must be satisfied that appropriate arrangements are in place for their care. In your application, you will be asked to provide information about any children of the marriage (or children who were treated as members of the family).
If you were married overseas, and your marriage is recognised in Australia, you can seek a divorce through the Australian courts. You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you will need to upload an English translation of the marriage certificate, together with an affidavit from a certified translator.
It is important to note that 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.