Separation and Divorce
I Have Just Separated! What Should I Do Now?
1. Stay Calm
There is life after separation. The decisions you make now may have important consequences later.
Try not to make decisions in the heat of the moment.
Make rough plans that meet your needs.
Remember to keep any plans flexible.
2. Seek expert help
There is a list of helpful organisations at the back of this booklet.
3. Consider Counselling
Counselling may help you and your spouse to:
- sort out and understand the many issues involved in separating or when a relationship breaks down;
- reconcile the relationship or work towards permanent separation;
- and reach agreements, particularly those that relate to children.
4. Consider Mediation
Mediation is explained in more detail in this booklet.
5. Prepare A Careful Budget
This will help you assess your financial situation.
It will also help your solicitor accurately assess your financial needs.
6. Seek Legal Advice
Even if you and your spouse want to negotiate matters between yourselves, your solicitor will be able to give you the information you need to act in your own best interests.
Do not rely on the experience of friends and relatives who have had marriage problems. Your situation is probably different and the law may have changed since then.
7. Make Any Agreements Formal
Once you and your spouse reach an agreement, make sure you make it formal.
A solicitor can explain the alternatives to you. This way you know that your agreement will be enforceable by the Court.
8. Ask Your Solictitor Whether Or Not You Should Make A New Will
This will ensure that your property will be distributed as you would wish.
9. Keep A Diary Of Any Incidents That Relate To The Children If You Are Having Child Welfare Problems
You might forget things and this information may be important.
10. Keep Copies Of All Documents And Letters Sent To You By Your Solicitor
Also keep all receipts and invoices that relate to your financial situation.
11. Ask Your Solicitor Questions If There Is Anything You Do Not Understand
12. Ask About Your Legal Costs
Solicitors’ fees may vary from firm to firm. Some solicitors send accounts after specific stages.
You may prefer that your solicitor sends you monthly accounts so that you are clear about your costs as you go along.
Sort these things out up front as it will save you and your solicitor embarrassment and disagreements later.
13. Seek Legal Advice About Where You Can Live
If you are married you may be able to obtain a Court Order that gives you sole use and occupation of your home.
Even if you are not married, if there has been violence, you may be able to obtain a Protection Order requiring your partner to leave the home.
You should seek legal advice.
14. Remember To Take Your Personal Papers If You Do Leave
You will need identification if you intend to apply for a pension.
You should also take important documents such as marriage and birth certificates, titles to property, bank details and citizenship papers.
15. Go Back To Collect Your Belongings If You Need To
If you need to go back to get personal items that you left behind, but are afraid, you can ask the police to accompany you.
Can I Make An Agreement With My Spouse Without Having To Go To Court?
It is always preferable to reach an amicable agreement.
You can try to do this through counselling, mediation or negotiation.
Counselling
The purpose of counselling is not necessarily to help couples reconcile.
Counselling can help parents to work through issues of child welfare or other problems resulting from separation.
Children can attend counselling sessions on their own. However, be aware that such sessions may be legally confidential. If they are, you will not be able to get any information from the counsellor about what the child said.
Organise counselling as soon as possible after separation. If possible, organise it beforehand.
Mediation
A mediator is a neutral third party who arranges a meeting between you and your spouse to help you find a solution to your dispute.
Once a mediator has worked with a couple, that mediator cannot legally represent either of the people, individually, on the same issue again.
Solicitors sometimes sit in on mediation sessions with their clients.
If your solicitor does not sit in on your session, you can meet your solicitor afterwards and get legal advice before the next session.
If you reach an agreement during a mediation session, you can then speak to your solicitor who will prepare the agreement in writing.
If either one of you receives Legal Aid you must attend a legal aid conference.
At a legal aid conference there is a neutral chairperson who will help you try to sort out the issues in dispute.
Negotiation
Experienced Family Law solicitors, such as Michael Lynch Family Lawyers, try to settle matters without going to Court. They do this through negotiation.
Negotiation can be done in different ways. Two common ways are:
- through letters between your solicitors; or
- through a round-table conference where you, your spouse and your solicitors meet to negotiate a settlement.
Most matters are settled by negotiation.
If a matter cannot be settled this way, it can be taken to the Court.
If you reach an agreement, your solicitors should then prepare the necessary documents to finalise matters.
What Sort Of Agreement Do I Need?
The type of agreement will depend on the issue.
The most common types of agreements are those that relate to:
- children - Consent Order or Parenting Plan;
- de facto relationship property settlement - Recognised Agreement;
- matrimonial property settlement and/or spouse maintenance -
- Consent Order or Binding Financial Agreement; and child support - Child Support Agreement.
What Is A Binding Financial Agreement In A Marriage?
There are three types of Binding Financial Agreements:
- before marriage – also known as a pre-nuptial agreement;
- during marriage; and
- after marriage.
As long as a Binding Financial Agreement meets the legal requirements, they are binding and will be enforced by the Court.
The legal requirements for preparing a Binding Financial Agreement include the following:
- they must be signed by both people;
- there must be a statement that says each person has received legal
- advice relating to the Binding Financial Agreement;
- each person has had a solicitor sign a ‘Certificate of Advice’; and
- the ‘Certificates of Advice’ are attached to the Binding Financial Agreement.
If you would like to know more, ask your solicitor.
What Is A Recognised Agreement In A De Facto Relationship?
There are two types of Recognised Agreements that relate to de facto relationships. These are:
- Cohabitation Agreements – created before a couple decides to live together, or during the time that they live together; and
- Separation Agreements – created after a couple separates, or when they state that they intend to separate.
Recognised Agreements must have the following features:
- they are in writing;
- they are signed by both parties;
- they are witnessed by a Justice of the Peace or a solicitor; and
- they set out any significant property and liabilities that each person has.
Recognised Agreements cannot be easily overturned.
When Can I Get A Divorce?
Family Law in Australia is based on a ‘no fault’ principle. This means that the Court is not interested in ‘blame’ for marriage separation.
The only ground for divorce in Australia is ‘irretrievable breakdown’ of the marriage.
If you have lived separately and apart for a continuous period of 12 months, the Court is usually satisfied that the marriage has broken down irretrievably.
At least one person – you or your spouse – must have communicated to the other person that they intend to end the relationship. The mere fact of physical separation for 12 months cannot destroy the marriage relationship.
It is possible for you and your spouse to ‘live under the same roof ’ and to still satisfy the required 12 months separation.
You may decide to end your relationship but to continue living in the same home for financial reasons or because of the children.
The Court will examine specific facts to decide whether you have actually been living separately under the same roof.
If you are going to rely on a period of separation ‘under the same roof ’, the Court will ask for other independent evidence that you have been living separately.
When calculating 12 months separation, any periods of reconciliation that are less than three months long are not counted, and do not stop a 12 month period from being calculated.
You may apply for a divorce either individually or together.
There is a Court fee charged for filing the divorce. You may agree to share the filing fee.
It is possible to have the filing fee waived on the grounds of financial hardship. You can ask for the appropriate form at the Court Registry.
Once the documents are filed, you will be given a date for the hearing.
Divorce applications are no longer handled by the Family Court. They are handled by the Federal Magistrates Court.
Once a divorce application has been filed in Court it needs to be served on the other party. You can do this by post or personal delivery.
If you do not know where the other person is, you can apply to the Court asking to file a divorce without serving the other person the divorce application. Ask for specific legal advice if you are in this situation.
If it is less than two years between when you were married and when you file for divorce, you are required to have considered reconciliation with the help of a marriage counsellor.
The counsellor will verify this with a certificate. It is only in special circumstances that this step can be avoided.
If the Court is satisfied that the marriage has broken down irretrievably, it will pronounce a Divorce Order. The Divorce Order does not end the marriage. In ordinary circumstances, the Divorce Order becomes final onemonth and one day after it is made.
Neither person is allowed to re-marry before the Order becomes final.
In marriages where there are children under 18 years, the Court must be satisfied that appropriate arrangements have been made for their care. Until the Court is satisfied about this, a Divorce Order cannot be made final.
Once the Divorce Order has become final, you have 12 months in which to start proceedings for property settlement or financial support, if they have not been finalised already. After 12 months you must apply to the Court to be allowed to start such proceedings.
Do I Have To Change My Name?
A woman is not legally obliged to use her husband’s surname when she marries. The use of the husband’s surname has developed through custom.
If you decide to use your husband’s surname, you can change back to your maiden name at any time you want to. This often happens after separation.
Although you are not required to change your name formally, some people choose to do this as proof of their name change. This can be helpful when proving your identity to places such as banks and credit companies.
Do I Have To Support My Spouse?
Spouse maintenance is where a payment is made by one spouse to the other because of a significant difference in the amount of income. Spouse maintenance is only available to couples who have been married. It is not available to people who have been in a de facto relationship. There are a number of factors that the Court takes into account when
deciding whether maintenance has to be paid. These are:
- the age and health of you and your spouse;
- how long you have been married and how much that has affected your and your spouse’s ability to earn money;
- the income, property and financial resources you each have;
- the financial needs and obligations you each have;
- how much each of you has contributed to the income, earning capacity, property and financial resources of the other;
- the physical and mental capacity for each of you to find appropriate employment;
- whether either of you is required to care for children from the marriage, and those children are under 18 years;
- the need to allow each of you to continue your role as parent;
- whether either of you is responsible for supporting any other person;
- whether both of you will still be able to maintain a reasonable standard of living;
- whether paying maintenance would make it possible for either of you to take a course of education or training, or to start a business that would enable either of you to earn income;
- whether there is a change in the property owned by either of you;
- whether either of you is living in a relationship with someone else, and any financial circumstances that are relevant to that relationship; and
- any other issue that the Court thinks should be taken into account.
Any money received from an income-tested pension or benefit is ignored by the Court when deciding if maintenance will be paid or not.
Sometimes the Court will say that maintenance must be paid for a specific period of time so that the other person can complete a training course.
Maintenance payments will end if any of the following occur:
- the person receiving maintenance remarries;
- the person receiving maintenance dies; or
- the person paying maintenance dies.