A separation or divorce is an emotionally difficult time and the practical implications of ending a relationship and shared lifestyle can cause equally as much stress. A number of significant decisions need to be made, such as how assets will be divided, or how your children will be cared for going forward.

It is beneficial to get independent legal advice as early as possible during this stressful time when your decision-making capacity may be impacted. Even when a separation is amicable, it is important to understand your rights and the long-term impact of the arrangements you agree to.

Divorce

A divorce is the legal end of a marriage. In Australia a divorce application is a separate process to property or parenting settlements and a finalised divorce is not a prerequisite to initiating property or parenting proceedings.

Divorce orders are made by the Federal Circuit and Family Court of Australia, but in most circumstances a divorce application will not require appearing in court. Generally, the process involves filing documents with the court and the consent of both parties is not required.

A divorce application can be made when a marriage has broken down irretrievably and there is no reasonable chance of the parties getting back together. In order to make a divorce application, a couple must be separated for 12 months, however, this does not necessarily require you to live in separate residences.

If you have children under the age of 18 years with your former spouse, the court will need to be satisfied that proper arrangements are in place for the care of those children. Generally, a divorce will be finalised approximately one month after the divorce hearing takes place.

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.

De facto relationships

Family law legislation also applies to de facto couples whose relationship has ended. For a couple who was not legally married to access remedies under family law legislation, various factors are considered to determine whether they were in a de facto relationship, for example, the length and nature of the relationship, financial dependence or interdependence, the care and support of children, or whether the relationship was registered under state law.

Post-separation checklist

Separating from your spouse or partner is never easy, and it can be difficult to think logically and ‘legally’ during times of emotional stress. Following are some practical steps that you may consider after separation.

• Prioritise your safety – if there are family violence issues, you can contact your local Police or talk to a lawyer about the process involved in obtaining a restraining order.
• If you have children, try to work together to make arrangements that are in their best interests, cause as little disruption to their routine as possible, and foster a good relationship with both parents.
• Contact Centrelink to ascertain whether you are eligible for financial or other assistance.
• Prepare a list of assets, loans, bank accounts, credit cards, and obtain originals or copies of important documents such as passports, marriage certificates, birth certificates and insurance policies.
• Update passwords and login details for all online accounts, including email accounts, social media accounts, and online banking.
• Talk to your bank about arrangements for closing joint accounts, credit cards, etc, and any other concerns you may have. Most financial institutions have online resources and checklists that will guide you through the various banking considerations post-separation.
• See a lawyer – getting legal advice will clarify your rights and responsibilities, help protect your interests, and enable you to explore options for a reasonable outcome.

If you have recently separated from a partner or are seeking a divorce, our experienced lawyers can provide you advice about the next steps.

If you need advice or assistance, contact [email protected] or call 1300 110 080 for expert legal advice.