Our Frequently Asked Questions

Separation is when you and your partner stop living together as a couple – it can happen straight away or be a gradual process. Divorce is the legal process that formally ends a marriage, and you can only apply for it after you’ve been separated for at least 12 months. Property and parenting matters can be dealt with separately from, and often before, a divorce is finalised.

No. Australia has a no-fault divorce system. The only thing the Court needs to be satisfied of is that you and your spouse have been separated for at least 12 months, and that there’s no reasonable likelihood of getting back together.

No. Family law in Australia doesn’t apportion blame for the breakdown of a relationship. Property and parenting matters are decided on the basis of a number of considerations, not by fault. Have a look at “Our Services” pages for more comprehensive information.

Yes. If you’ve been in a de facto relationship for at least two years (or sometimes for a shorter period if there are children of the relationship or financial interdependence), you have the same rights as married couples to apply for property settlement and spousal maintenance under the Family Law Act.

Yes. Same-sex couples, whether married or in a de facto relationship, have the same rights and obligations under the Family Law Act as opposite-sex couples – including in relation to property settlement, parenting arrangements, and spousal maintenance.

Getting tailored advice early can make a real difference. Understanding your rights and options before making decisions – or before responding to the other party – often leads to a smoother and more cost-effective outcome.

The approach for dividing matrimonial assets is formulaic but every case is different. In essence, there is a 5-step process. First, there’s an assessment as to whether adjusting your existing ownership of property is just and equitable. Next, we identify the asset pool which is available for division. Don’t worry if you don’t have visibility around your financial situation, there is a process of exchanging financial documents which is compulsory so we can get the information we need. Next, we look at the contributions each of you made to the asset pool being financial, non-financial and homemaker and parenting contributions to work out a contributions-based percentage entitlement.

Then we assess your future needs, such as who has the ongoing primary care of the children, any major differences between yours and your ex’s earning capacity, financial resources either of you may have or be entitled to down the track and so on. A percentage adjustment is then made to account for those future needs. The last step is figuring out who gets what and again, ensuring the outcome is fair in the circumstances of your case.

For a more comprehensive discussion speak to one of our team 

Yes. For married couples, applications generally need to be made within 12 months of a divorce becoming final. For de facto couples, the time limit is generally two years from separation. Late applications are possible in some circumstances, but it’s best not to rely on this.

Superannuation is treated as property and can be split between separating couples, even though it’s not immediately accessible like other assets. This can be done by agreement or Court order, and the split is usually transferred directly between super funds.

This depends on whether one party has a financial need that they can’t meet from their own income, and whether the other party has the capacity to help after meeting their own reasonable expenses. It’s assessed on a case-by-case basis based on a number of different factors and isn’t automatic. Often spousal maintenance Orders are only in place for a short period of time to enable someone to re-enter the workforce, increase their working hours or to retrain.

A BFA is a private agreement between two people that sets out how property and finances will be divided if the relationship ends. They can be made before, during, or after a relationship (sometimes called a “prenup,” though that’s only one type). They’re not compulsory, but they can provide certainty and reduce the risk of future disputes, provided they’re properly drafted and each party gets independent legal advice.

Consent Orders are agreements between separated parties that have been formally approved by the Court, giving them the same legal force as if a judge had made the orders after a hearing. Unlike a private agreement, Consent Orders are enforceable through the Court, which gives both parties greater certainty and protection.

Even where things are amicable, it’s worth getting independent legal advice to make sure any agreement is fair, properly documents your intentions, and is legally binding (for example, through Consent Orders or a BFA). This helps avoid future disputes about what was actually agreed.

The most important consideration when working out parenting arrangements is to ensure the arrangements are in your children’s best interests. Should you embark on a legal path to determine your parenting arrangement the Court must consider the following things:

• What arrangements would best promote the safety (including safety from being exposed to family violence, abuse, neglect or other harm) of the child and each person who has care of the child.

When considering this factor, the Court must take into account:

• Any history of family violence abuse or neglect involving the child or a person caring for the child; and
• Any family violence order that applies or has applied to the child or a member of the child’s family.
• Any views expressed by the child.
• The developmental, psychological, emotional, and cultural needs of the child.
• The capacity of each proposed carer to provide for the child’s developmental, psychological, and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring,
• The benefit to the child of being able to have a relationship with both parents, and other significant people, where it is safe to do so.
• Anything else that is relevant to the child.

In addition, there is a stand-alone “best interest” factor when a Court is making decisions for Aboriginal and Torres Strait Islander children where a Court must consider the child’s right to enjoy their culture and the support they will receive to connect to that culture.  We have a particular expertise in complex parenting matters.  Call us to find the best lawyer for your case

Child support is a financial contribution from one parent to the other for the cost of raising a child. It’s generally calculated using a formula that considers both parents’ incomes, the amount of time (overnight) the child spends with each parent, and the number and ages of children involved.  Many people opt to enter into a private child support agreement which usually results in a fairer way of sharing the actual costs of raising a child including school fees, private health insurance, participation in extra-curricular activities and so on.

Relocating a significant distance (especially interstate or overseas) generally requires either the other parent’s agreement or the Court’s permission. Moving without consent can lead to urgent applications and may affect future parenting arrangements.

Your ex generally needs either your consent or the Court’s permission to relocate the children overseas. If you’re concerned this might happen without your knowledge, the Court can also make orders preventing a child’s passport being issued, or placing their name on the Airport Watch List to prevent removal from Australia.

Yes. Grandparents (and other significant people in a child’s life) can apply to the Court for parenting orders, including time arrangements, if they’re unable to reach agreement with the parents.

Surrogacy arrangements are primarily governed by state-based surrogacy legislation, which sets out the process for transferring legal parentage to the intended parents (usually through a parentage order made in the relevant state court). Once parentage is recognised, the usual family law principles apply to that child if the parents later separate. It’s a complex area, and early advice is important given the interaction between state surrogacy laws and the Family Law Act.

Family violence isn’t limited to physical abuse. It includes coercive control, threats, emotional and psychological abuse, financial control, and behaviour that causes a person to fear for their safety or that of their family. The law recognises a broad range of behaviours that can amount to family violence.

Yes. The Court must consider any history of family violence when making parenting orders, including its impact on a child’s wellbeing and the practical safety of arrangements. It can also be a relevant factor in property settlements, including in some cases affecting how contributions and future needs are assessed.

Here we are talking about parental responsibility.  Before an order about parental responsibility is made by a Court, each of a child’s parents has parental responsibility for them.  Parental responsibility means the responsibility to make decisions about the care, welfare and development of a child.  Major long-term decisions for children include decisions about their education, significant medical treatment, their religious upbringing, their name, and where they live.

Ideally, major long-term decisions about children should be made jointly by parents – especially when both parents continue to have a significant involvement in the lives of their child.  In these cases, the parents may agree to, or the Court may order, ‘joint parental responsibility’ for a child.  When an order for joint parental responsibility is in place, there is a legal obligation upon the parents to consult with one another and make a genuine attempt to reach agreement about major long-term decisions for their children.

Sometimes joint parental responsibility is not possible due to a history of family violence or high-level parental conflict, or because of parental incapacity or absence.  In those cases, an order that one parent has sole parental responsibility for some or all major long term decisions will be made.

Each case is different. Speak to one of our experts about the parenting arrangements which will promote your child’s best interests

This may amount to international child abduction. Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which provides a process for seeking the return of a child wrongfully removed to, or retained in, another signatory country. Acting quickly is important in these situations.

This depends on the country involved and the type of order. Some countries have reciprocal arrangements with Australia for recognising and enforcing family law orders, but this isn’t automatic in every case. If you have orders from another country, it’s worth getting advice on whether and how they can be recognised here.

Your safety and mental health should be your priority.  If you feel unsafe or you or your children are at risk of harm, then living under one roof is untenable.  Moving out won’t impact your “rights” and there are ways we can help you to have sole occupancy of your home until your case is over.  If you feel you are at risk, our team has experience with family violence cases and is available for a confidential phone call.

Cost of living pressures mean that many people are what we call “separated under one roof”.  This means you continue to live together (but not as partners) until your case ends and your assets are divided.  Of course, this can only work if you can be courteous and amicable during the transition period.  It’s important not to expose your children to conflict between you during this time.  Make sure you tell your children, extended families and friends that you’re separated.  This will be important later when you want to get your divorce.  Make other changes such as sleeping in separate rooms, living more like flatmates rather than an intact couple.  This could include buying and cooking your own meals, doing your own cleaning and laundry and agreeing on specific times for each of you to have the primary care of your children.  This will make the transition for your kids easier when you physically separate. For more information on this and other arrangements you could implement pending resolution of your family law proceedings, speak to one of our team.

It is impossible to say with certainty how long your case will take.  Certainly, it is better to reach a resolution if you can, either by negotiation or mediation rather than embarking on litigation which can take years before you get a result.  Speak to one of our team about your matter so we can give you more specific advice about your unique circumstances.

The amount of legal fees you spend will depend on how your case progresses.  If you and your ex reach a settlement between you and all we have to do is draft the documentation, then your legal fees will be modest.  At the other end of the scale is litigation for which fees can escalate into the hundreds of thousands.  We understand the burden of legal fees, regardless of your personal circumstances.  We strive to be upfront about your costs, do regular revisions of estimates provided as your case evolves and our focus is on resolution as early as possible to minimise your exposure to heavy legal fees.

Not necessarily. Most matters are resolved by agreement, through negotiation or mediation, without ever going to Court. Court proceedings are generally a last resort when an agreement can’t be reached.