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Family Law

Separating from your spouse or partner

Separation is when one or both people (whether they are married or in a de facto relationship) have decided that their relationship has come to an end. You can decide to separate from your partner even if they do not agree, and you do not need anyone’s permission.

Practical matters to consider when separating

  • Advise organisations such as the Department of Human Services (DHS) Centrelink, Child Support and Medicare (as relevant), that you are separated from your partner.
  • If you have children, you should try to make arrangements that are in their best interests, provide minimal disruption to their routine, and, if possible and safe to do so, foster a meaningful relationship with both parents.
  • Prepare a list of assets and liabilities and obtain originals or copies of important documents such as passports, marriage certificates, birth certificates and insurance policies.
  • Talk to your bank about closing joint accounts or ensuring two signatories are required to operate the accounts. Discuss any other protective measures to take with respect to your daily banking.
  • Update passwords and login details for email accounts and online banking.
  • Review or make a Will to take into consideration your new circumstances and obtain advice, particularly about jointly held property.
  • See a lawyer – getting legal advice early can assist to clarify your legal rights, protect your interests, and explore options for a quick and effective outcome that minimises expensive family law proceedings.

How do I get a divorce?

Divorce is the legal ending of a marriage and once a divorce order is made final, you are able to remarry. To obtain a divorce you must apply to the court. There must be an ‘irretrievable breakdown’ of the marriage and separation for 12 months with no likelihood of getting back together with your ex-partner.

Before granting a divorce, a court must be satisfied that appropriate arrangements are in place for any children of the marriage.

Children’s care arrangements

When a couple is unable to agree on arrangements for children, they can attempt a settlement through family dispute resolution and any agreement reached can be documented in a parenting plan or consent orders. If they cannot agree, the parties may need to commence court proceedings.

The family court can determine disputes about children from a domestic relationship, including disputes about parenting arrangements and child contact. This also includes issues relating to children from a de facto relationship.

Dividing property after separation

Separated couples also need to determine what will happen with their property and finances, bills, debts, joint bank accounts, superannuation, etc., and how their assets will be divided.

A legal property settlement formalises the division of the parties’ assets and liabilities and may be obtained as soon as a married or de facto couple separate. Note however that court proceedings for a property settlement must be commenced within 2 years of separating from your de facto partner, or within 12 months of a divorce being granted.

Most family law property settlements are finalised by negotiation between the parties and their legal advisors, without going to court. During negotiations, the steps that a court would take are usually applied to determine the split, noting however that no two cases are alike. The parties’ joint and individual assets, liabilities and financial resources are identified, and their respective financial and non-financial contributions assessed. The parties’ future needs are considered, and the proposed division of property should reflect a just and equitable outcome in all circumstances.

Once a settlement is reached, it can be legally documented in a financial agreement or consent orders. Court proceedings may be necessary as a last resort.

What is a family violence/intervention order?

Family violence is actual or threatened conduct by a family member towards another family member or property, that causes a person to be fearful or anxious about his or her safety. A child is exposed to family violence if he or she hears or experiences the effects of family violence.

A family violence intervention order protects any family members being subjected to family violence.

You can apply for a family violence intervention order at your local Magistrates’ Court. The Police can also apply for one on your behalf. If you need urgent protection, a magistrate can make an interim intervention order. An interim order provides protection from family violence until both sides can appear at court. You can also include children who are under 18 in your application.

The person making an application for an intervention order is called the ‘applicant’. The applicant may be a police officer, or anyone seeking protection from family violence. The person who the intervention order is being brought against (the perpetrator of family violence) is referred to as the ‘respondent’.

Once an intervention order is granted by the court, an applicant becomes the ‘protected person.’

If the respondent breaks any conditions listed in an intervention order, police have the power to charge them with a criminal offence.

We are experienced family lawyers and provide sound advice and guidance for all types of family law matters. We are knowledgeable and compassionate and will help you through this difficult stage of your life, ensuring your legal rights are protected and that the best possible outcome can be achieved for you and your family.

If you need any assistance, contact one of our lawyers at [email protected] or call 03 9338 8511 for expert legal advice.