Family Law FAQ
If you and your spouse no longer have a relationship, then you are considered to be separated. Things that can infer the end of the relationship include:
- comments to each other saying the relationship was over
- telling other people that the relationship was over
- separating your finances from each other
- ending your sexual relationship
- physically separating into different rooms or different living locations
There is no paperwork required to start a separation, but you must write down and remember the separation date. This date becomes crucial for future property division.
Yes. When two people are divorcing, the law recognises they can still live under one roof as long as their intention to separate has been made clear. It is not uncommon for couples to continue living in the same home after they have separated. This situation is often due to one party’s inability to move out of their shared residence for financial reasons.
You can either come to an agreement with your ex-partner about the amount of child support, or the Child Support Agency will determine how much the child support payments will be. They base this determination on your income, the other parent’s income, the amount of time the children spend with each person, and the age of the children.
Absolutely. Seeing a lawyer before you separate can help the separation goes smoothly and make things less complicated. Talking to a family lawyer is vital as they will support and guide you through this difficult process with legal advice on what rights and entitlements are available to you. We can help you through the proceedings and also refer you to other professionals who can provide support to you as well.
There are quite a few ways that you can approach settling with your partner. The most common include:
- direct negotiations
- mediated discussions
- lawyer-assisted negotiation
- Collaborative Law proceedings
- binding arbitration
- Family Court litigation
A family lawyer can help you choose which approach to take and guide you through the entire process. They are there to protect your rights and your interests, so lean on them for support and information.
Under the law, you must be separated for 12 months before applying for a divorce. Thus, it is very important to know the date upon which you separated.
It is also important to understand that you do not have to be divorced to start working on financial arrangements and children’s matters. You can put those into place before the divorce is finalised.
After being separated for 12 months, you can apply to the Federal Magistrates Court for a divorce. This application can be submitted yourself, or a family lawyer can do so on your behalf. The application also must be served to your partner so that they are made aware of the proceedings.
The location of your separation will not prevent you from applying for a divorce. As long as you have met the 12-month separation requirement, you can have lived in the same house during that time and still get divorced.
However, you will need statements from a third party who will verify your separated status during this time. That is why it is important to tell other people about your separation, to live separately, and to disentangle your finances from your ex.
Property Settlement and Financial Matters for Married Couples and De facto Couples
We recommend you receive legal counsel before signing any agreement about asset division. Although it is certainly better to come to an agreement than go to court, a family lawyer should review the agreement to ensure it is fair and that your rights are upheld.
Futhermore, a family lawyer can help you get Consent Orders that will formalise the agreement. This legal binding action will protect you from additional claims on your property.
Yes, there is no need to wait until the divorce to settle. As soon as you separate, you can begin the property settlement process.
The only timeline is on the other side of the divorce. You should finalise your property settlement within 12 months of the divorce. After this time, the court may not allow you to start proceedings.
Spousal maintenance is a type of payment that one spouse pays to the other for living expenses.
It’s different than child support in that it applies only to adults and not children, which focuses on their needs like clothing, shelter, or food. Also, this is not automatically granted like child support.
The recipient of spousal maintenance is not automatically entitled to it, unlike child support. Only an agreement or a court order can order spouses to pay support. In order to obtain spousal maintenance, a spouse must demonstrate that:
- They cannot meet reasonable living expenses based on their current income and income-earning capacity.
- Their spouse may provide reasonable financial support based on their earning capacity, income, and reasonable living expenses.
Children and Parenting
No. Either the court may decide, or the parents may agree, that it is in the children’s best interests to have unequal parenting time. However, the court does have a goal for both parents to have substantial and significant parenting time unless there are circumstances that would prevent it.
“Custody” is an outdated term that is no longer used in family law. Instead, we talk about the children’s living arrangements and who will make decisions for them.
Ideally, parents agree on these issues. If not, the court system will decide about living arrangements, time spent, and parental responsibility. The court looks to the children’s best interests in all of their decision-making. Thus, it can be very helpful to have a family lawyer on your side who can argue on your behalf.
The Family Law Act is focused on the rights of the children and not their parents. It is designed to keep children safe, ensure they have meaningful relationships with their parents, and make sure their parents fulfill their duty to the children.
That being said, a parent can expect to have ongoing involvement with the children unless there are abuse issues. A parent can also expect to have regular visitation with the children and be involved in important decisions about their lives.