You've just separated, now what?

You're probably overwhelmed and have lots of questions. In the early stages following separation there are lots of loose ends that need to be tied up.

For those who have just separated!

SOME LEGAL INFORMATION DURING THIS PERIOD CAN BE VERY USEFUL

Separation happens when you and your partner stop living together as a couple. In this context though, it is possible to be separated but still be living in the same house as your partner. This is commonly referred to as being separated “under the one roof” and your lives would somewhat be similar to being just flat-mates (albeit possibly even less friendly).

While there is no official separation document, there are organisations that you may need to advise of your changed circumstance. For example, you may need to tell Centrelink, if you receive benefits already or if you need financial assistance. You may also need to contact the Child Support Agency; if you have children living with you, you may be entitled to financial payments (child support) from your husband or partner, or you may need to pay child support.

Here are some answers to the most commonly asked questions:

 

When Can I Get a Divorce?

You must be separated from your partner for at least 12 months before you can apply for a divorce. The court must be satisfied that the relationship has broken down irretrievably. A divorce only applies to couples who are legally married, not in a de facto relationship. It is possible for you to get a divorce if you have lived separately “under the one roof” for that 12-month period, or for some of it.

However, if you have been married for less than 2 years you may have to attend marriage counselling before you can make your application for divorce.

Do We Both Need to Agree to the Divorce?

No, both people do not need to agree or consent to the divorce. If you have been separated for the required period, you or your partner can apply for a divorce without the other partner’s consent. However, they do need to know about the proposed divorce so they will need to be served with your application for divorce.

The grounds for opposing the divorce must be that you have not been separated from your partner for 12 months or the court does not have jurisdiction to grant a divorce. The court can only grant a divorce order where the person applying for the divorce ordinarily lives in Australia or is an Australian citizen.

How Long Does it Take to Get a Divorce?

Basically, from the time you file your Application for Divorce, to the time the final divorce order is made is usually around 3 months.

Do I Need to Go to Court?

If you have made the application by yourself (not jointly with your partner) and you have children under the age of 18, you will have to attend the divorce hearing at court. The court will want to know that proper living arrangements have been made for the children. The children do not go to court.

Do I Have to Wait for the Divorce Before Considering a Property Settlement?

The process of divorce itself is separate from all the other issues. A divorce is the legal ending of your marriage, and is usually the last thing to do when everything else is sorted out, including children’s matters and the property settlement. It is usually advisable to resolve property matters before the divorce, as there are time limits in applying to the court for property orders once the divorce has been made.

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Family law is both complex and emotionally challenging. In our experience, having some useful information initially can help you understand the road ahead.

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