Separation & Divorce
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The reality is though, a large proportion of relationships and marriages do end and for a variety of reasons, but it’s important to know that you haven’t “failed”. Go easy on yourself. Separation is a significant event, often with emotional, financial, and physical repercussions.
Accurate and timely legal advice can provide you with the information you need in order to be able to take the next steps forward, both comfortably and confidently.
Firstly, it’s important to distinguish that “divorce” is simply the legal dissolution of a marriage – it does not include the process of dividing property, finalising parenting arrangements, child support, or other factors that may arise following separation.
If you have already finalised arrangements relating to property division and parenting arrangements, jump to the divorce section of this webpage. Alternatively, learn more about separation below.
What to consider before or after Separation
I’m thinking about separation
Not every separation is the result of a big argument where someone walks out, slamming the door behind them. In fact, most aren’t – they are the result of serious and quiet contemplation.
If you find yourself thinking about separation as you drive to work on a Monday morning after a particularly difficult weekend, or after the kids have gone to bed, you are not alone – even though it may feel like it.
There is a lot to work through at this time. There’s the guilt of not “being honest” with the other person, fear about what will happen after separation and the impact on the kids, and possibly sadness as to how you reached this place where you now find yourself contemplating separation.
All of these emotions are perfectly natural and the best thing to do is work through them. It’s a good idea to surround yourself with family and friends that you can talk to in confidence and to seek emotional and other support from external advisors where needed.
It's also really important to know that just because you seek that advice, it doesn’t mean you are locked into going through with a separation. A large proportion of the people who we meet with are only contemplating separation, and then end up reconciling and not separating.
At this time, information is key to how you choose to move forward. A specialist family lawyer will be able to arm you with all of the necessary information to be able to make a decision, like where you stand currently, how it would work if you chose to separate, what your options are, and how to prepare yourself in the event of separation. Importantly, a good family lawyer will also connect you to other professionals who can offer support, such as a counsellor or psychologist, accountants and financial advisors, and others as your situation demands.
Family lawyers also have an obligation to ensure that you have exhausted the prospect of reconciliation. While every couple is unique, reconciliation counselling may help you to understand more about your feelings and help you decide whether to stay together or not.
Best Wilson Buckley offers fixed-fee, no-obligation initial appointments that are of course entirely confidential.
We will not contact the other person in your relationship, or anyone else, without your express consent. However, we will need to know the other person’s name and date of birth purely for the purposes of making sure that we are in a position to provide you with advice where we can only assist one party to a separation.
If you would like to find out more about seeking initial advice from an expert family lawyer, contact one of our offices in confidence.
I think my spouse is contemplating separation
The end of a relationship when one party is ready to end the relationship before you are ready can be a really difficult time. Firstly, if you feel comfortable, you can discuss how you are feeling with your partner. If you have not done so before, you may wish to consider engaging a therapeutic practitioner such as a marriage counsellor or psychologist.
If things are not particularly amicable or you have safety concerns, then getting in touch with a specialist family lawyer at an early stage may be a great circuit breaker so you know where you stand and how to approach conversations about separation with your partner.
Unlike what you may expect, it does not require both parties to agree before a separation can take place. Separation can be initiated by one party only, provided certain further steps are then taken.
The law relating to de facto couples and married couples is slightly different when it comes to the timing and effect of separation, so again it is a good idea to get legal advice at an early stage about your individual circumstances. Importantly, who initiates the separation has no bearing on other important matters like remaining under the same roof, or one party leaving the home, or what should happen with your property or children.
I'm Worried about Paying the Bills following Separation?
Separation is already an incredibly challenging time. Throw into the mix concerns about how you will afford the mortgage/rent, bills, and to buy groceries for yourself and your children, and the challenge can grow tenfold.
However, there is a legal option known as “spousal maintenance” (or “alimony” as it is known in the United States) that is available to separated families.
Learn more from one of our Accredited Family Law Specialists, Amity Anderson, in the below video.
We’re separating at the moment
Separation comes about in a variety of ways. Whether it was a joint decision, or something initiated by only one of you, you can never really be prepared for that moment, especially emotionally.
There are steps you can take upon separation that will help to sort out more practical matters and ultimately work towards a much more functional relationship into the future.
You can start by answering questions such as:
- Is separation the answer?
- How will we explain our decision to separate to the children?
- How do we allow for the children to maintain the same level of time and contact with each of us immediately following separation?
- How do we minimise the disruption to the children?
- What immediate living and financial decisions can we make together?
- In what way will we continue to meet our financial obligations and joint liabilities pending an agreement about the division of our property?
- What will happen to any joint bank accounts in the short term?
- Can we agree on how to divide our household contents, furniture and motor vehicles?
- How do we prevent spiralling into conflict?
Answering these questions will likely be clouded by things like surprise, shock, grief, sadness, and possibly anger and guilt. If for no other reason than the future wellbeing of your children, do try and put as much of that aside as you can to consider these fundamental questions.
If you’re struggling to reach even preliminary agreement on these issues, then we urge you to consider seeking out the advices of a specialist family lawyer or counsellor to guide and support you at this time. If you find yourself in this situation, you need to consider other questions like:
- Am I concerned for my personal safety or that of the children?
- Should I obtain my own bank account?
- Do I need to change passwords on any personal accounts such as internet banking, emails, social media, and PINs?
- Do I need to change the names of any accounts such as the internet and phone, insurance, and utilities?
- Do I need to take any steps to protect my interests in the property, including cash?
- What do I need to take with me?
- Do I need to notify Centrelink or any other government departments?
Is it time to update my will and enduring power of attorney, and any beneficiaries of superannuation and life insurance?
Best Wilson Buckley offers fixed-fee, no-obligation initial appointments with an expert family lawyer where you can seek assistance in answering these questions and finding out more about what happens next.
We’ve separated and I’m not sure what’s next
How to navigate a separation and all that goes with it is not something we are taught or learn about at school. All of the well-intended advice from family, friends, neighbours, and colleagues will only tell you about their experience, and not how your separation and divorce is likely to play out.
It probably feels like there is a seemingly endless supply of “what if” and “how do I” questions to worry about and keep you up at night…
- What about the children – where will they live, and what time will they spend with the other parent?
- How do we separate our assets and property?
- Will I be financially secure following this process?
- What about child support and spousal maintenance?
- How do I even get a divorce?
- Will we have to go to court?
Answers to all of these questions are simply a matter of time and a healthy dose of expert advice away. Now is a good time to start looking for a family lawyer that is right for you and taking that first step to go and meet with them.
There can also be a real sense of being out of control at a time like this. To help regain a sense of control upon separation, you can make an active decision to:
- prioritise the wellbeing of your children;
- respect the role of the other parent;
- devise a plan for your health and wellbeing and stick to it; and
- seek advice from an expert family lawyer.
We separated a while ago and I want to get things sorted
Now that you’re ready to deal with the legal aspects of your separation, it is important to seek expert family law advice.
Begin your family law journey and get immediate answers to your options now.
The wellbeing of your children and security of your financial resources are the most important things to think about at the time of separation. For that reason, if you haven’t already seen a divorce lawyer, it is advisable that you seek advice on how to deal with those aspects of your separation, and what timing may be appropriate for your situation, before getting formally divorced.
Once the legal aspects of your separation have been considered, you might be ready to begin the process of your divorce.
Remember though that a divorce is simply the legal dissolution of your marriage, and whilst parenting arrangements, financial and property settlements, and child support can certainly part of the process, they are separate areas of family law and need to be treated as such.
It is also critical to note that there are time limitation periods imposed under the Family Law Act if you find yourself in a position of needing to apply to the court for a property settlement, failing negotiation or mediation as options. For married couples, this time limit is 12 months after the date of your divorce order. If you miss this time limit and then seek for the court to make property orders, you are only able to proceed if the court specifically allows you to proceed “out of time”. This is not guaranteed and our advice is always to make an application within the 12 month timeframe or prior to seeking a formal divorce.
When can I get divorced?
You will need to satisfy the court that the marriage has irretrievably broken down. This is done by demonstrating that you and your spouse have been separated for at least 12 months before applying for a divorce.
- To be able to apply for divorce in Australia, either you or your former partner also need to:
- be an Australian citizen by birth, descent, or grant of Australian citizenship; or
- regard Australia as your home and intend to live in Australia indefinitely; or
- ordinarily live in Australia and have done so for 12 months immediately prior to applying for divorce.
There is also special consideration given to things like:
- the length of the marriage. If it has been less than two years, you must undertake counselling and obtain a certificate from a relationship counsellor that states you have considered trying to reconcile;
- care arrangements for children under the age of 18; and
- consent of both parties to the divorce.
What if we still live under the same roof?
It is possible to get a divorce while you still live in the same house. This is referred to as “separation under one roof” and you will need to provide the court with evidence of things like:
- a change in sleeping arrangements;
- a reduction in shared activities;
- a decline in shared household duties;
- the dividing of shared financial accounts;
- notifications made to government departments or institutions; or
- telling your family and friends about your separation.
It wasn’t my fault that the marriage broke down
In Australia, the law operates on the principle of no-fault divorce, meaning that – perhaps frustratingly for some – the court does not take into consideration why the marriage ended.
A good family lawyer will also remind you of this fact, and encourage you to focus on reaching an amicable resolution wherever possible.
What if my spouse doesn’t agree to the divorce?
There are two ways to apply for a divorce; a joint application made by both parties, or a sole application made by one party. If your spouse doesn’t agree to the divorce, you can make a sole application.
A sole application for divorce means that only one you is making an application for divorce. If you make a sole application, it will need to be personally served on your former partner and, if there are children under 18 years old, you will need to attend the court hearing.
A joint application for divorce means that you and your spouse mutually agree to get a divorce. If you do not have children under 18 years there is no requirement for either of you to attend court.
How long does the process take?
Preparing an application for divorce is usually pretty straight forward, especially if you meet all of the criteria. Once your application for divorce is filed with the court, you will be allocated a hearing date and then your divorce order will be issued one month and one day later if it is granted by the court.
What documents do I need for a divorce?
In order to apply for a divorce you will need:
- your government-issued marriage certificate, or a translated copy if you were married overseas and it is not in English;
- contact details for your spouse or their solicitor;
- any concession card (such as a Health Care Card or Pensioner’s Concession Card) which will enable you to apply for a reduction in the court’s filing fee.
Do I have to go to court to get divorced?
The court plays a role in all divorces, but depending on your circumstances the level of involvement may vary significantly.
If you are making an application for divorce and the parties to the marriage have no children under the age of 18, you do not have to attend the court hearing. Similarly, if you are making a joint application for divorce, and the parties to the marriage have a child or children under the age of 18, you do not have to attend the hearing.
If you are making a sole application for divorce and you have a child or children under the age of 18, you must attend the hearing. The other party is only required to attend if they have lodged a Response to Divorce and seek to oppose the application.
A divorce hearing will not deal with property settlement or with child custody issues. Those issues will be dealt with separately.
Applying for a divorce for same sex couple married before 9 December 2017?
Same sex couples whose marriages are recognised in Australia can access divorce in the same way as heterosexual couples, regardless of when the marriage was celebrated. This includes couples married overseas before 9 December 2017. If you were married on or after 9 December 2017 the restrictions around counselling will also apply.