I think that my spouse and I are going to separate. Is divorce the next step?
- Not necessarily. All married couples are encouraged to seek support and guidance, which may range from their family, community or a counsellor. There are professionals such as psychologists, as well as organisations like Relationships Australia who may be of assistance. You need not be alone during this stressful time, as support is always available.
- We recommend that you seek the advice of RF LEGAL if you are uncertain about your legal rights and separation.
Do I need my ex-partner’s permission to separate or apply for a divorce?
- No, the decision to separate and/or divorce can be an individual choice, though it can also be made jointly.
How long do I need to be separated before applying for a divorce?
- A 12 month period of separation must apply before either party can apply for a divorce order in Court.
Do I need to get divorced?
- No, but you cannot remarry unless you are divorced. It can also be symbolic, as some people regard divorce as a definite end of a relationship. By remaining separated without getting divorced, there can be implications in relation to property matters, superannuation and Wills.
Can I still live in the same household with my spouse whilst we are separated?
- Yes, however you and a witness would need to show the Court that you have been separated for 12 months or more, as well as confirming other elements of your separation (such as sleeping in separate beds, not sharing your money or bank accounts, not performing household or domestic duties for the other spouse and making it known to others that you have separated). You would also need to explain the circumstances for remaining in the same household during separation.
What factors are considered by the Court for an application for divorce?
- The couple have been separated for 12 months or more; and
- there is no prospect of reconciling; and
- there are adequate arrangements in place for the care of any children under the age of 18 years.
Does the law look at who is to blame for the relationship breaking down and leading to a divorce?
- No, the law does not focus on fault when considering an application for divorce. However, the conduct of either party may be relevant if there are subsequent Court proceedings to decide on parenting or property matters.
How much does a divorce cost?
- A fee would apply if you wish to lodge an application with the Family Court or Federal Magistrates’ Court. A reduced fee may apply if you have a concession card or are experiencing financial hardship. Professional costs would apply if you engage a lawyer to assist you.
When can I remarry?
- Once your application for divorce has been granted by the Court, this order will be made final one month and one day from the hearing date. You cannot remarry in the meantime.
Do I need to get a lawyer?
- You can prepare your own divorce application, though if matters are complicated and you wish to seek professional support, we recommend that you contact us at RF LEGAL.
Family Law – De Facto couples
Am I treated differently to a married couple because I was involved in a de facto relationship?
- In recent years, the Family Law Act 1975 has been amended to improve the legal rights of de facto couples seeking to resolve their family law matters. The stigma that applied to de facto relationships in the past is no longer as entrenched.
- The law would essentially apply the same legal principles in addressing children and property matters for de facto and married couples. The only main differences being:
- divorce does not apply for de facto couples
- de facto couples have two years from the date of final separation when they can commence formal property proceedings. By comparison, no time limit applies for separated married couples, though the law provides a one-year deadline for property proceedings once a divorce has been made final.
Family Law – Children
My ex says that they will get full custody of the children. What can I do?
- We recommend that you contact RF LEGAL to receive expert advice about your legal rights and responsibilities. You do not deserve to be intimidated by your former partner or others who clearly would not have your best interests at heart.
What happens to the child/ren if I separate or divorce?
- Although you and your partner are no longer together, you both continue to have parental responsibility for your child, unless it is deemed not in the “best interests of the child”. This is the main consideration that the law looks at when deciding the most appropriate parenting arrangement.
Do I have to go to court to sort out parenting issues?
- No, in fact it is strongly encouraged that parents try to address parenting matters before going to court. In most cases, parents are given the opportunity to resolve any differences through family dispute resolution such as mediation. This can be more cost effective and less stressful rather than going straight to court.
Do I need a lawyer?
- At RF LEGAL, we can assist you with:
- advice about your legal rights
- if you are eligible for Legal Aid
- advise you about the best method to resolve your matter
- We can provide all levels of assistance, ranging from confidential one-on-one advice to court representation at all stages during your family law matter.
Family law – Property
My ex says that they will get all the property and I will miss out. Is this true?
- We recommend that you contact RF LEGAL to receive expert advice about where you and the law stand in terms of dividing property. We have the expertise to guide you through all the legal options that can allow you to get a fair share of the property settlement that you and your children can live with.
How does the law divide property?
- The law takes a 4 step approach by taking into account:
- the value of the property
- your contributions
- your future needs
- what is fair and equitable
How soon should I seek a property settlement?
- A settlement can be reached anytime during the period of separation.
- However, if your divorce has been made final, the law gives you 12 months for you to seek an order for property settlement.
- For de facto couples, the law provides 2 years from the date of final separation to commence formal property proceedings.
What is Collaborative Practice?
- This is a method of dispute resolution that allows separated couples to work out their differences with the assistance of other professionals, such as their lawyers, financial advisors and counsellors.
- All the professionals are committed in working with both clients in helping them reach a mutually acceptable outcome.
What are the advantages of collaborative law?
- It can give separated parties a better chance to work out their differences without going to court.
- It also gives parties greater control in making important decisions about their children and property without the uncertainty, stress, time and cost of going to court for a judge to make those decisions.
Can lawyers represent you in court if the collaborative process does not work out?
- No. In the collaborative process, the parties and their lawyers sign a contract not to go to court. Although a client has the choice to discontinue the collaborative option, the lawyers are bound to withdraw from any future court proceedings.
- It is therefore in the interests of both clients and lawyers to reach an agreement through collaboration, otherwise clients face the cost of having to start all over again.
I am in fear for my safety at home. What can I do?
- First of all, the safety of you and your loved ones is our number one priority. Talk to someone you trust, such as your family, friend or your lawyer about your fears. Have a safety plan in place so that you have a safe place to go from leaving a hostile environment.
- Do not hesitate to call the police on 000 if you believe that you are in danger.
- Apply for an intervention order.
What is an intervention order?
- It is an order made by the court to stop a person behaving in a way that makes you and your loved ones feel unsafe.
How can a lawyer help?
- We can help you apply for an intervention order and represent you in court.
- We can explain the law and your options.
Wills, Powers of Attorney and Estates
What is a Will?
- It is a legal document that sets out how your assets will be distributed when you pass away.
What happens if I die without leaving a Will?
- The law would determine who would receive your assets and there is the risk that it would not reflect your wishes.
What are the benefits of getting a Will?
- It can provide you with peace of mind, as it can reflect your wishes.
- It provides for greater certainty and reduces the prospect of family feuds.
What can you leave in a Will?
- How you would like to give away your assets (such as house, car, shares, cash, jewellery, personal belongings).
- Organ donation.
- Burial wishes.
- Who you would like to act as a guardian for your children.
What is a Power of Attorney?
- It is a legal document that allows you to appoint someone else to make decisions for you, if you are unable to do so.
Can I get one Power of Attorney to cover all of my legal, financial, medical and guardianship needs?
- No, as the law provides different requirements for each.
- We recommend that you seek a lawyer to discuss which Power of Attorney can best meet your needs.
How can RF LEGAL assist me with preparing a Will and/or Power of Attorney?
- We have the expertise to prepare documents to suit your needs.
- We are happy to discuss your options and listen to what you need.