Separation & Divorce Lawyers

Separation and divorce are different legal concepts. Separation occurs when a marriage or de facto relationship ends. One party must form the view that the relationship is over and, communicate it to the other party through words or conduct. It is irrelevant whether or not the other party agrees with that opinion.

Divorce is a Court Order from the Federal Circuit and Family Court of Australia. A divorce order is the formal legal ending of a marriage. An application for divorce can generally be filed after the spouses have been separated for at least 12 months and one day, provided there is no reasonable likelihood that they will resume married life.

An order for divorce deals only with the legal status of the marriage. It does not determine property settlement, spousal maintenance, parenting arrangements, child support or any other aspect of the parties’ relationship. Those issues are dealt with separately.

People leaving a de facto relationship do not need to apply for an order for divorce of course because they were never married at law. They may nevertheless have rights and obligations concerning property, maintenance, parenting arrangements and child support. Eligibility requirements apply to de facto financial claims, and different jurisdictional arrangements may apply depending on what state or territory the De Facto relationship took place.

No. A married couple can be separated while continuing to live in the same home. This is commonly called “separation under one roof”.

What matters is whether the relationship has ended, rather than whether the spouses live at different addresses. Relevant evidence may include changes to sleeping arrangements, finances, household activities, social activities and the way the parties present their relationship to family and friends and the outside world.

If you lived under the same roof during any part of the required 12-month separation period, additional affidavit evidence may be required when applying for divorce. The Federal Circuit and Family Court of Australia explains the evidence required. Obtaining advice early can help you document the circumstances and date of separation accurately.

The date of separation can affect several important family law issues.

For married couples, it determines when the required separation period begins. A divorce application can generally be filed after the parties have been separated for at least 12 months and one day.

Separation itself does not start the limitation period for a married couple’s property or spousal-maintenance proceedings. Those applications generally need to be commenced within 12 months after the divorce order becomes a final order.

For eligible de facto couples, applications for property settlement or de facto maintenance generally need to be commenced within two years after the relationship breaks down. A person seeking to apply after the applicable deadline usually needs the Court’s special permission, which is not automatically granted. These limitation periods are confirmed in the Court’s financial and property guidance.

The separation date may also be relevant to the parties’ financial circumstances and contributions. If the date is disputed or uncertain, obtaining legal advice early is recommended.

A divorce application is filed online through the Commonwealth Courts Portal and dealt with by the Federal Circuit and Family Court of Australia. It may be made jointly by both spouses or solely by one spouse.

To apply, you generally need to establish that:

• your marriage has broken down irretrievably
• you have been separated for at least 12 months and one day
• there is no reasonable likelihood of resuming married life
• either you or your spouse satisfies the applicable Australian citizenship, domicile or residency requirement.

You will generally need to provide your marriage certificate and your Australian Citizenship Certificate. Additional evidence may be required if, for example, the certificate is not in English or you were separated while living under one roof. If you make a sole application, you will ordinarily also need to arrange for the application to be formally given or ‘served’ upon your spouse.

Where there are children of the marriage under 18, the Court must consider whether proper arrangements have been made for their future care, welfare and development. A divorce usually becomes final one month and one day after the divorce order is made, unless the Court changes that period. Once it becomes final, the usual 12-month limitation period for married couples’ property and spousal-maintenance applications begins.

No. A divorce order deals only with the legal ending of the marriage. It does not automatically resolve the other issues that arise such as property division, spousal maintenance, parenting arrangements, parental responsibility or child support.

Depending on the issue, arrangements may be addressed through negotiation, family dispute resolution, a parenting plan, consent orders, a binding financial agreement, an administrative child-support assessment or Court proceedings.

For married couples, applications for property settlement or spousal maintenance generally need to be commenced within 12 months after the divorce becomes final. For eligible de facto couples, the usual period is two years after the relationship breaks down. Applications may sometimes be made outside these periods with the Court’s permission, but permission is not guaranteed.

It is sensible to obtain family law advice before applying for divorce or promptly afterwards if financial matters remain unresolved.