Your Family Law FAQs Answered

Here at Resolve Conflict Family Lawyers we’ve seen it all in regards to separation, divorce, property settlements, parenting arrangements, wills and estates. Though all family law matters can be different from one person to another, we are always asked similar questions from our clients. For that reason we have decided to compile our top most common FAQs on family law for you.

We’ve decided to separate, now what?

First of all you should record the date of separation as this will be needed for your application for divorce.

It is also advised that you start to organise and gather documentation on all your financial on none financial matters, such as parenting matters.

Related Article: We’ve Decided To Separate…What Do We Do Now?

Do I Need A Family Lawyer?

Early advice from an experienced family lawyer will likely save you a great deal of time and money in the long run. Meeting with a family lawyer early in the separation journey will help you understand the process of divorce, property settlement and child arrangements as well as giving you an understanding of different option like mediation/negotiating that you can choose from to resolve your family law matters.

What is a ‘De Facto’ relationship?

A de facto relationship is defined by Section 4AA of the Family Law Act 1975 when you and your partner, of same or opposite sex, are engaged in a relationship as a couple living together on a mutual, genuine and domestic basis. The exception to this definition is if you are married to one another or related by family.

Related Article: Top 5 Misconceptions About De Facto Relationships You Need To Stop Believing

When can I apply for divorce?

Once you are separated from your spouse for a minimum of 12 months and 1 day you are able to file for divorce.

You are able to apply for divorce together (joint application) or on your own (sole application). If you are making a joint application you do not need to go to court.

If you are making a sole application and your children --are under 18 and were part of the family prior to separation, you must go to court unless circumstances stop you from attending.

Related Article: How To Apply For Divorce

What is separation?

Separation occurs the day either or both parties express their intention to end the relationship. From that point onwards one or both parties move out of the home, or otherwise start living separate lives under the same roof.

What if we’ve been living together during the separation period?

You can be separated but living under the same roof which means; separate beds, separate domestic responsibilities, separate social lives. An identifiable change in the relationship you once were in.

What if we get back together?

If you and your spouse reconcile for 3 months or more, the 12 month separation period will need to restart and begin again. However if you and your spouse reconcile for a period of less than three months, then that doesn’t impact upon the 12 month separation requirement, although the time you were together cannot be counted towards the 12 months.

Does Divorce deal with property and children matters?

No, divorce proceedings do not finalise any arrangements regarding parenting and property. These types of orders need to be filed on a separate application.

What are the grounds for divorce?

In Australia, the only grounds for divorce are that the marriage has broken down irretrievably and there is no reasonable likelihood you will get back together.

What If my spouse doesn’t agree to the divorce?

Consent is not required by both parties. As long as you fit the criteria to apply, one party may initiate the divorce proceedings.

How long does it take to get divorced?

If the divorce process is handled efficiently and you meet the eligibility requirements the divorce application can be quickly prepared and filed.

However, obtaining a final Divorce Order generally takes three to four months from the date of filing the application. Note, this process can take longer if there are problems locating or serving the other party.

Is going to Court the only option when getting divorced?

No, there are numerous pathways available to you. At Resolve Conflict we empower your decision making by assisting you in the first instance to make an informed choice between the different pathways available to you to reach an agreement. Discover the different pathway options available HERE.

When can I remarry after divorce?

You can remarry once your divorce order has taken effect. This is usually one month and one day after your divorce is granted by the Court. You will need to supply your marriage celebrant with a Notice of Intended Marriage at least one month before the wedding date, so it is advised not to leave too short a gap between the anticipated granting of your divorce and your proposed wedding date, just in case there are any delays in your divorce being granted. Note, it is illegal to remarry until your divorce becomes final.

If we got married overseas, can we get divorced in Australia?

Yes, if you were married overseas, you can apply for a divorce in Australia if either you or your spouse:

• regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
• are an Australia citizen by birth or descent
• are an Australia citizen by grant of an Australia citizenship
• ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file an English translation of it, and an affidavit from the translator.

Do we have to wait until we’re divorced to finalise the property settlement?

No, in actual fact once you and your partner have separated it’s a good idea to seek a property settlement sooner rather than later. The law regards asset accumulated after separation as relevant to the net assets of each party at the date of settlement or trial so any assets you acquire during this time may be included in the net asset pool to be divided between you and your ex-partner.

What is a Parenting Order?

A parenting order is a set of orders made by a Court about parenting arrangement for a child. Parenting orders can be made by consent if both parents agree, or by a decision of the Family Court if parents cannot agree.

A parenting order deals with things like:

• Who the child will live with
• How much time the child will spend with each parent and with other people, such as grandparents
• The allocation of parental responsibility
• How the child will communicate with a parent they do not live with, or other people
• Any other aspect of the care, welfare or development of the child.

A parenting order can also stop parents from doing certain things, such as drinking alcohol while the children are with them.

Can I move interstate with my child?

If you are a separated or divorced parent wanting to relocate with your child there are a few factors you need to consider before making your move.

Firstly, if your child primarily lives with you and you need or wish to relocate, you need to speak to the child’s other parent and receive permission.

If you are unable to reach an amicable decision between yourselves you can try mediation and come to an agreement through Family Dispute Resolution or you can apply to the Courts and the decision will be made for you.

When can my child decide who they want to live with?

In Australia there is no minimum age for a child to be able to express their view about where they would like to live in a parenting dispute. The courts, as with all family dispute cases involving children will look at the “best interest of the child”.

Under section 60CC(3)(a) of the Family Law Act there are 16 factors the court must consider when deciding what parenting arrangement is in the child’s best interest.

I’m I entitled to Spouse Maintenance?

A spouse has the right to maintenance to the extent that the other spouse is able to maintain them, if they are unable to support themselves adequately because of:

a) Having the care and control of a child of the marriage who has not attained the age of 18 years;

b) Age or physical or mental incapacity for appropriate gainful employment; or

c) For any other adequate reason.

Related Article: Am I Entitled To Spousal Maintenance?

Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email [email protected]