Divorce & Separation

Separation is when you and your partner stop living together as a couple in a domestic relationship. The law recognises all domestic relationships equally, including de facto and same-sex relationships. There is no legal process required to become separated, and you and your partner can be separated even though you still live in the same premises. Divorce is the official ending of a marriage, which must be granted by a court. You can apply for a divorce by yourself or with your spouse, but you must prove that you have been separated for more than 12 months and there is no possibility of reconciliation. Couples married for less than two years will need to attend counselling or apply for an exemption. Applying for divorce is a fairly simple process, but divorce proceedings do not consider the division of property or arrangements for children. Such orders must be applied for separately.

Property Distribution

Australian family law has a ‘no fault’ divorce system. This means that the reason for the separation is not taken into account when determining the distribution of the family property. The property that can be distributed includes real property (such as the family home), money, superannuation entitlements, cars, jewellery, as well as debts such as mortgages or loans. All family property may be divided, regardless of who holds the title, purchased the asset or incurred the debt. To minimise costs, it is desirable to attempt to negotiate a settlement with your partner before applying to the Court. If a financial agreement is reached, the Court will generally agree to make consent orders reflecting the terms of your agreement. If you cannot reach agreement, you may apply for a property order within 12 months of the divorce order taking effect. In making a property order, the Court will start from the presumption of a 50/50 split, before adjusting the parties' interests to account for the financial and domestic contributions of the parties, a range of statutory factors, and what is equitable in the circumstances.

Children

Any person concerned with the care, welfare and development of a child may apply for parenting orders, including parties to a marriage before or after separation or divorce. The best interests of the child will be the primary consideration in making a parenting order. Factors such as the child's relationship with each parent, the lifestyle, background and parenting history of each party, and the views and maturity of the child will inform the Court's decision as to what is in their best interests. Where a parent cannot provide a healthy home life for the child, the Court will determine how best to facilitate contact between that parent and the child while safeguarding the latter's best interests.

Further information

If you would like to know more about divorce and separation, or family law generally, please contact us on (03) 9600 0033.