Common Questions About Family Law

What does family law cover?

Family Law deals with the legal issues and social and relationship changes arising from the breakdown of a martial or de-facto relationship. It includes divorce proceedings, parenting arrangements for children, property and financial settlements, spousal maintenance, child support, adoption and surrogacy. Family Law also involves financial agreements (commonly known as “pre-nups”), whether before, during or after a de facto relationship or before, during or after a divorce.

What is the difference between separation and divorce?

Separation occurs when one party forms the intention that the relationship or marriage has ended and communicates that intention to the other party.

Divorce is the legal process that formally dissolves a marriage. There must be an irretrievable breakdown of the marriage and parties must be separated for at least 12 months before applying to the Federal Circuit and Family Court of Australia for a divorce order.

How do I formalise separation?

• There is no registration procedure under the Family Law Act, 1975 to officially record the fact of a marital or de facto separation. It is however important to be clear about the date of separation, document the date, and inform close friends and family because the date is relevant to the timing of a divorce application, and calculation of the length of the marital or de facto cohabitation.
• You can be separated while living in the same home provided that the relationship has ended and you are no longer doing things that a couple would typically do, such as socialising as an intact couple or enjoying a romantic holiday.
• Whilst it is not compulsory to document a financial settlement or parenting arrangement, many people decide to do so to bring about a sense of clarity, to sever financial ties and to define a structured pathway for children transitioning from one home to two homes.

How long does the divorce process take?

If you and your spouse have been separated for at least 12 months, either party can file for divorce or file a joint application. Australia has had a “no-fault” divorce law since 1976. If the parties separate and then resume the relationship for a period of less than 3 months before separating again, the original date of separation can be relied upon, and the 12-month period does not reset. If the parties reconcile for 3 months or longer, the calculation of the 12 month time period does restart if they separate again.

Once the divorce application is filed with the Court, the timelines are:

• Application date to hearing date: about 3 months.
• Divorce order made: at the hearing (often without an attendance being required and subject to the application and proof of service being in order).
• Divorce becomes final: 1 month and 1 day after the divorce order is made by the Court.

In most cases, a divorce order is made within about 4 months of filing the application if your lawyer has drafted the application or otherwise checked that it meets the necessary requirements. Many people prepare and file their divorce application by following the divorce kit on the Court website and others prefer a lawyer to do it for them.

Is divorce different from property settlement?

Yes, a divorce and property settlement are separate legal matters.

A divorce order ends the marriage and does not resolve parenting or property matters.

Property settlement is the process of distributing the assets, liabilities, superannuation and financial resources of the parties. Debts owing to third party creditors must also be included. A property settlement can be documented by an Application for Consent Orders, a Financial Agreement or by a Judge making orders after a contested hearing when the parties cannot reach their own agreement.

Time limitations apply as to when a party must file an application for property settlement (or spousal maintenance). In the case of a marital relationship, the application for financial orders must be filed within 12 months of the date that the divorce order becomes final, and in the case of a de-facto relationship, the application must be filed within 2 years of the date of separation. If a party is late in filing their application, they must include an application for leave to file out of time and explain the reason for their delay.

We are still on good terms so do we have to go court to resolve our family law matter?

No, many family law matters can be resolved by agreement and without the need for contested court proceedings. Court is a last resort and can be used once the pre-action procedures have been complied with, unless an exception to those procedures applies. Exceptions that permit a party to bypass or excuse their compliance with the pre-action procedures are the following:

• Where there are allegations or a risk of child abuse or family violence;
• Urgency;
• A party would be unduly prejudiced;
• A previous application was on foot within the last 12 months; or
• The parties have reached agreement and are filing an Application for Consent Orders.

Reaching an agreement away from the Court and documenting it may include:

• Negotiations between the parties – either directly between the parties or between the parties respective solicitors.
• Attending mediation – the parties can attend on their own with the mediator, or the parties solicitors can attend too.
• Documenting the agreements – once an in-principle agreement is reached, solicitors can help you document it. This can be done through consent orders which are filed with the court and made if the Court is satisfied that they are just and equitable, or a financial agreement between the parties. Parenting arrangements can be documented by a parenting plan or parenting orders (see our earlier articles about using them).

At Carroll & O’Dea Lawyers, an Accredited Family Law Specialist can help you decide what is appropriate for your circumstances and provide advice and representation that is fit for your needs.

When should I consult to a family lawyer?

It is best to seek legal advice as soon as possible, whether that is before, during or after you or your spouse has made the decision to separate. Obtaining early legal advice allows you to understand the avenues for reaching an early settlement and usually brings clarity to the family’s current and future circumstances.

In short, a family lawyer can explain your options and help you make informed decisions.

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.