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Frequently Asked Questions

faq-divorce

 

How do I apply for a divorce?

Either party to a marriage (or both together) can make a divorce application once they have been separated from their spouse for a period of not less than 12 months. Applications for divorce are brought in the Federal Circuit Court of Australia. There is a filing fee payable to the Court when filing an Application for Divorce.  It may take up to three months for a divorce to be finalised from the time of filing your application.

How is separation defined?
Parties are “separated” when at least one person communicates their intention to the other party that the relationship has ended, and both parties no longer live together as husband and wife. 

 

What happens to my children?
If there are children, the Court must be satisfied that proper arrangements have been made for the care of your children before granting a divorce.
When is my divorce legal?
Normally, a Divorce Order takes effect, and is therefore final, one month after the Court makes the Divorce Order.
Separation under one roof – can I still apply for a divorce even if we have been living in the same home?
If you have been living under the same roof at any stage during the 12 months since the date of separation, you may be able to apply for a divorce.  You will need to prove that you have been living separately and apart from your spouse, even though you have been living under the same roof. 
Do I need to be divorced before I enter into a property settlement?
You do not need to be divorced before entering into a property settlement.  You may negotiate a property settlement at any time before or after separation, but any application to Court for a property settlement or spousal maintenance must be made within 12 months of your divorce being granted. 
After the divorce, what happens to the children?
Under the Family Law Act, there is a presumption that both parents will have equal shared parental responsibility for their child or children.  This means they are required to consult each other and make joint decisions about major issues affecting the child such as education, health, housing, and religion. Contrary to popular belief, the law does not require children to spend equal time with both parents in all cases.  The allocation of time between parents is subject to the child’s best interests in all cases. 
Who takes responsibility for the care of children?
The Family Law Act allows for any person who has an interest in the care, welfare and development of a child to make an application about that child. This means that persons who are not the parents may apply to the Court for Orders, including grandparents.
What role does the court play in making decisions about children?
Where parents cannot agree about parenting arrangements, the Court can make Orders which it considers to be in the best interests of the children.  These orders deal with when a child lives with a parent, or spends time with a parent. 
What happens if one party takes the child away?

If a child has been removed, or there is a fear that a child may be removed, an urgent Order may be obtained from the Court to prevent the child from being taken away, or to have the child returned, or to locate the child. 

faq-couples
 
Do de facto couples have the same rights as married couples?

De facto couples who separate after 1 March 2009 (and 1 July 2010 for South Australia) have the same rights as married couples under the Family Law Act 1979 in all states and territories except Western Australia.

Do same sex couples have the same rights as heterosexual couples?

Same sex couples have the same rights as married couples and de facto couples, in all states and territories except Western Australia.

 

De facto relationship is defined in The Family Law Act 1979 as follows:

 

"A person is in a de facto relationship with another person if:

 

(a) the persons are not legally married to each other; and

 

(b) the persons are not related by family; and

 

(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis."

 

Same sex couples therefore are considered to be in a de facto relationship for the purposes of property, parenting, maintenance and superannuation splitting.

faq-child support
How is Child Support Calculated?

Both parents are required to financially support their child.  This may involve one parent paying a child support payment to the other, to help with the costs of raising a child. Under the Child Support (Assessment) Act 1989, Child Support is calculated using an administrative formula set out in the Act.  The formula is based on each parent's income and their care percentage of the children.  If a parent’s percentage of care of the child is greater than 65%, that parent’s child support liability is NIL.

Can child support payments be disputed?
If a parent believes the current child support assessment is unfair, he or she may make an application with the Child Support Agency for a review.  If the Agency makes a decision which again is not favourable to the parent, further steps may be taken to have that decision reviewed.
Do I need to go through the Child Support Agency?

The Child Support Agency undertakes the child support calculation and will issue an assessment reflecting its findings.  The Agency will only issue an assessment if requested by one or more of the parents.

 

You may reach agreement on child support without involving the Child Support Agency.  Such agreement may be set out in a Binding or Limited Child Support Agreement.

 

An application relating to Child Support may be made to the Court, but only in limited circumstances.

faq-wills
 
Do I need to change my Will if we divorce or separate?  

When you divorce, any reference to your former spouse in your will, whether as an executor or beneficiary, is automatically void.  It is therefore advisable to update your Will, or create a new one after separation, to ensure that a valid Will is in place and to protect your Estate.
It is very important to have a Will which reflects your current intentions, such as who is to receive the assets of your Estate and who is entrusted with the role of administering your Estate.

What do I do if I'm suffering from domestic violence?
If at any time you’re assaulted, intimidated or harassed by your spouse, action may be taken under State Laws to obtain a domestic violence order (AVO) for your protection.  In the first instance, contact your local police for assistance.
What is a Binding Financial Agreement (or pre-nuptial agreement)?

A BFA or pre-nuptial agreement is a legally binding agreement made between two people setting out the division of property in the event of marriage breakdown, and other financial issues which might apply either during the marriage, or after separation.

When can I apply for a Property Settlement?

Applications for Property Settlement may be commenced at any time after separation until 12 months after a divorce becomes final.  De facto couples may apply for a property settlement at any time until 2 years after separation.

What is Spouse Maintenance?

Spouse maintenance is a form of financial support of one spouse by the other spouse.

Who is entitled to Spouse maintenance?

A person to a marriage is liable to maintain the other person by way of spouse maintenance payments to the extent that the paying person has the capacity to do so AND the person receiving the financial support is unable to support himself or herself adequately by reason of:

  • (a) having the care and control of a child of the marriage under the age of 18 years;

  • (b) their age or physical or mental incapacity for gainful employment; or

  • (c) for any other adequate reason, including such things as family income and resources, commitments to support oneself and children, and the

  • (d) standard of living that is reasonable within the context of the family.

Do I have to go to court for a property settlement?

You do not have to go to Court to finalise a property settlement in cases where agreement is reached, and the agreement is properly documented.  Agreement may be reached through negotiation, mediation or using the collaborative process.