What happens after separation in Australia?

Separating from your spouse, whether during a marriage or [...]

Separating from your spouse, whether during a marriage or a de facto can lead to uncertain and stressful times, most of us have questions like?

1. Who will get custody of our children?
2. Am I allowed to keep living in the house?
3. Do I have to wait to be divorced?
4. Do I have to go to Court?

This quick guide will help you navigate some of these primarily questions.

Family Law in Australia

In most states in Australia, Family Law is governed by the:

• Family Law Act (1975) (CTH)
• Family Law Regulations (2024) (CTH)
• Federal Circuit and Family Court of Australia (Family Law) Rules (2021) (CTH)

In Australia, family law matters are decided by the Federal Circuit and Family Court of Australia. Western Australia has a separate but similar system, based on the Commonwealth framework with some changes.

Family law in Australia is designed to support separating families to resolve disputes as quickly, inexpensively and efficiently as possible.

There are 3 distinct but related parts to family law:

1. Divorce – this is the legal process that ends a marriage. People often use the word "divorce" to describe everything involved in separation, for example property and parenting arrangements, but divorce itself is much simpler, changing your legal marital status from "married" to "divorced" or "single" – like the reverse of a wedding.
2. Parenting – often referred to as "custody" this is the process of making decisions about where children who are under the age of 18 years will live and how decisions will be made for them.
3. Property – division of assets (house, bank accounts, superannuation, vehicles etc.) between you and former partner.

How long after separation can I get Divorced?

Once you have been separated for more than 12 months you are able to apply for a Divorce. Importantly, you do not need to live in different homes for the 12-month period but if you have lived together during the period of separation you will need to provide the Court with further evidence to confirm that you were "separated under one roof".

You do not need to be divorced to start negotiations or enter into an agreement about your children or your property but, divorce will trigger deadlines which are important in family law and may affect your rights in the future.

How do custody arrangements work after separation in Australia?

Custody of minor children (children under the age of 18 years) is a common concern for separating parties. Australian legislation does not use the word "custody" but rather discuss parenting arrangements for children which includes:

• Who the children primarily live with, whether in one household or equally between two households.
• How they spend time with a non-live with parent and other significant people in their lives.
• How major decisions will be made for the children, for example, where they go to school or what medical treatment they receive.

When discussing parenting arrangements, the Court, and lawyers in the family law system, will refer to the key principle of "the best interests of the child" which looks at the circumstances of the family unit and the child or children to determine what arrangements would allow a child to be safe and secure whilst supporting their relationship with their parents and wider families.

For children who are of Aboriginal or Torres Strait Islander decent the best interests also include a connection to kin and Country.

If you can reach an agreement in relation to parenting arrangements, you can formalise the agreement through a Parenting Plan or Parenting Orders. If you are unable to reach an agreement by negotiations and mediation you may need to approach the Court to make Orders.

How is property divided after separation in Australia?

What happens to your property, for example your home, bank accounts, superannuation, vehicles, shares, is determined under the principles of the Family Law Act 1975 (CTH).

When looking at property matters the Court, and therefore your lawyer, will take a structured approach through a legislative approach:

1. Establishing what is in the "property pool", being the assets and liabilities that you each own yourselves and the assets and liabilitys you own together.
2. What contributions each of you made either financially, or non-financially, including the care of children and homemaker contributions.
3. What are the current and future circumstances relevant to each of you.

Underlying the above is the legislated requirement that a split must be just and equitable.

What financial support applies after separation?

Separating can often result in uncertain times financial, particularly where one spouse has been the primary carer for minor children and does not have adequate financial resources of their own. In Australia the Family Law Act 1975 (CTH) works toward financially separation parties however there are mechanisms of financial support which are available on separation and, sometimes continuing, for a period of time:

1. Child Support – managed by the Commonwealth Department of Human Services, child support uses a standard calculation that determines the amount that a parent should pay another parent or care giver to assist in the care of their child or children. Except in limited circumstances, child support will continue until a child reaches 18 years.
2. Adult Child Support – determined by the Court or an agreement between parties, Adult Child Support is available in limited circumstances to assist parties to care for children of a relationship into adulthood where there are additional needs.
3. Spousal Maintenance – determined by the Court or agreement between the parties, typically spousal maintenance is a temporary payment made from one party to another although there is the ability for spousal maintenance to continue for an extended period of time following separation.

Do I need a lawyer if we have already reached an agreement?

Great to see you've landed on an agreement – that's a real win and an importance first step to resolving your family law matter quickly and cost-effectively.

You will still want to engage a Lawyer for the purpose of documenting your agreement whether it is as a Parenting Plan or Orders for Parenting and/or Property to ensure that the agreement is correctly documented and satisfies the requirements at law.

If you are looking to enter into a Financial Agreement for your property matter (pre-nuptial or post-nuptial agreement) both you and your former spouse will need a Lawyer as it is requirement that you each, get a Certificate of Legal Advice in accordance with the Family Law Act 1975 (CTH).

How long do I have to wait to take my ex to Court in Australia?

The Family Law Act 1975 (CTH) sets out steps that you are required to take prior to going to Court and it is only in very limited circumstances that you are allowed to commence proceedings without undertaking these necessary steps. These steps include:

1. Providing disclosure, that is exchanging documents that are necessary to the family law matter (for example financial information or material in relation to risks issues).
2. Attending mediation (Family Dispute Resolution).
3. Providing offers of compromise.
4. Putting the other party on notice of your intention to commence proceedings

There are exceptions including where a matter is urgent, and if you believe your situation requires urgent attention you should get legal advice as soon as possible.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.