First steps after separating
- Prioritise personal safety. If you fear for the wellbeing of yourself or your children, contact your local police. If necessary, obtain advice about applying for a restraining order.
- If you and your ex-partner are on reasonable terms, make arrangements that are in your children’s best interests, that provide for minimal disruption in their routine, and foster a meaningful relationship with both parents.
- See a lawyer – getting legal advice early can assist to clarify your legal rights, protect your interests and explore options for a reasonable outcome aimed at minimising lengthy and costly family law proceedings.
- 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 email accounts and online banking.
- Review or make a Will to take into account your new personal circumstances and obtain advice, particularly about jointly held property.
Applying for a divorce
To legally end a marriage, an application is made to the Court.
Australia has a no-fault divorce system and the Court is not concerned with attributing blame, however, to obtain a divorce order:
- the marriage must have broken down with no likelihood of reconciliation; and
- the parties must have lived separately and apart for a continuous period of 12 months; and
- if there are children under the age of 18 years, the Court must be satisfied that appropriate arrangements are in place for their care and wellbeing.
In determining whether a couple has lived apart for 12 months, the Court recognises that there are many reasons why a couple may choose to live under the same roof, despite their decision to separate. This may be for practical, financial, religious, cultural or other reasons. In such cases an affidavit, explaining these circumstances, is filed with the application for divorce.
Dividing property after separation
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. It is important to remember however that any Court proceedings for a property settlement must be commenced within 2 years of the breakdown of a de facto relationship, and within 12 months after a divorce is 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 a Court would take in dividing property under the Family Law Act 1975 (Cth) are usually applied. Essentially, 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 then taken into account and the proposed division of property should reflect a just and equitable outcome in all circumstances.
Once an agreement is reached, it can be legally documented in a financial agreement or consent orders. Court proceedings may be necessary as a last resort.
Why you should formalise the division of your property
It can be tempting to avoid formalising a legal property settlement, particularly when you have separated on good terms. There are, however, good reasons for doing so.
The transfer of most real estate is liable to stamp duty, however certain exemptions apply when the property is transferred pursuant to the Family Law Act. These exemptions cannot be obtained through an informal agreement.
An informal property settlement is not legally recognised as bringing the couples’ financial affairs to finality, leaving them vulnerable to future issues such as a claim by either party on post-separation assets, income and inheritances.
Arranging for the future care and welfare of children after a relationship breaks down can be stressful for the parents, the children and other family members. The best interests of the children will be paramount in all parenting matters and the Family Law Act provides a presumption of shared parental responsibility, unless extenuating circumstances exist.
Parties should make genuine efforts to resolve disputes regarding parenting arrangements and may do so through considered negotiation with the assistance of their legal advisors. Agreements may then be set out in parenting plans or consent orders. Consent orders must be approved by the Court and are legally enforceable. Parenting plans are not approved by the Court but may be taken into consideration in any subsequent Court proceedings concerning the children.