Many people find it beneficial to enrol in some form of counselling to assist them to manage their emotions in the early stages of separation.
A top priority for parents is make sure that any children are safe and adequately cared for both emotionally and financially.
If there has been domestic violence in the home, seek help from police and support organisations within your community.
Ensure that both parties have access to joint finances to fund ongoing living expenses.
You will have many questions when you first start to consider separation and divorce and there are many things that you should consider addressing immediately.
Download The List:200 things to consider before and after you separate or divorce. Not all of the items will be relevant to you but there are bound to be items on the list which you will have forgotten.
The First Steps through Separation and Divorce, by Christine Weston is a great place to get started. It was written specifically for people who are not familiar with the family law system and the process of family law in Australia. It is available in paperback, and e-book versions. Much of the information about coping with the stress and loss, as well as parenting and organising your new life, is relevant to readers in other jurisdictions.
We thoroughly recommend that you take steps to familiarise yourself with the family law system and collate all the information that will be required in order to offer advice on your specific circumstances BEFORE you seek advice from a family lawyer or start the negotiation process with your ex partner.
The Split Kit has been developed specifically to assist you with this and to save you precious time and heaps of money in legal fees.
Read the free information provided in the Legal Matters, Property and Finance and Parenting pages on this website. Check out the useful links and calculators in the free Resources pages. Choose from the menu bar to navigate through the site.
There is no set age at which a child has the ultimate say in who they will live with. In determining what is in the child’s best interest, a court will give weight to the views of a child according to their age and level of maturity.
What are the best interests of the child?
Relocating home with a child
Yes, with the written consent of all other parties with parental responsibility. Applications can be lodged at an authorised Australia Post office or any Australian Passport Office.
Travelling overseas with a child
The Hague Convention - international recovery of a child
Almost without exception, only with the agreement/written permission of the other parent. If the other parent wants to relocate with the child and you do not agree, you can apply for an order to stop the relocation of the children. If you relocate with the child away from the area you are living without a court order, or without the consent of the other party, a court may require you to return until it has considered the case. If there is a court order in place, you will be breaking the order and the other parent can apply to enforce the current order.
Strictly speaking, if there is no Court Order or binding agreement in place regarding travelling internationally with the children then the answer is yes. However, every time a parent wishes to take the children on international travel for a holiday or other reasons, the permission of the other parent should be obtained. If you have concerns as to the motive for travel, you can apply to the Court for orders to prevent or restrict the travel.
What is a Parenting Order?
Help! How can I stop my ex taking the kids overseas?
Travelling overseas with a child
The Hague Convention - international recovery of a child
The Court recognises the importance of Grandparents and extended family in a child's life but grandparents do not automatically have the rights to communicate or spend time with their grandchildren. The 'rights' always remain with the child. If a grandparent cannot reach agreement with the parents, they may go to Court to get an Order which enables them to do so.
Family dispute resolution certificate (Section 60I)
You may be able to file an application electronically on the Commonwealth Courts Portal. You will need access to a scanner, printer and a VISA or Mastercard.
You will not be able to file electronically if:
- you wish to request an exemption of fees on the basis of financial hardship or are requesting a deferral of the payment of a filing fee.
- you are filing an application for parenting orders and do not have a s.60I certificate (dispute resolution certificate).
- you are seeking permission from the court to file as there is an existing order in place that prevents you from filing an application.
- you are seeking an early or urgent hearing date. The earliest date allocated for filing electronically is 28 days from the date of filing, but is more likely to be 42 days.
No attendance is necessary if there are no children of the marriage. Where there are children of the marriage who are under 18 years, a sole applicant must be present at the court hearing to give evidence as to the arrangements for the children of the marriage. If it is a joint application, no attendance is necessary. You should also attend if there are facts in your ex-partner’s affidavit that you do not agree with or there are any special circumstances which may require you giving further evidence. If you indicated in your application that you wanted to be present, you must be or advise the court that you no longer wish to attend.
Divorce - Step by Step
No, not in order to be considered as living separate lives. If you continue living under the same roof after separation, you can still apply for divorce. However, evidence must be given by way of affidavit by each of you and a third party, each outlining the circumstances of separation.
What is an Affidavit?
If your application for divorce is approved and a Decree Nisi (interim Divorce Order) issued, you will be able to marry in 1 month and one 1 day after your divorce hearing when your Decree Absolute (Divorce Order) is issued. You must give the marriage celebrant a Notice of Intended Marriage at least one month before the wedding date. You must show the Divorce Order to the marriage celebrant before the wedding can take place.
If you have been married for less than two years, you can only obtain a divorce after participating in marriage counselling. There are special circumstances such as family violence, where a court would consider there is reason for an application for divorce to proceed, despite not having attended counselling.
Eligibility for divorce
A divorce order will be made at the hearing, if the Court is satisfied that all matters in relation to the divorce application are proven. The divorce will become final and a Decree Absolute (Divorce Certificate) will be issued to each of you in exactly 1 month and 1 day after the hearing date.
Divorce - Step by Step
You or your spouse may apply for divorce without each other’s consent. This is known as a sole application. Both parties can also jointly apply for divorce.
You may file a divorce application provided that either you or your spouse:
- regard Australia as home;
- intend to live in Australia indefinitely;
- is an Australian citizen; or
- ordinarily lives in Australia and has lived in Australia for the 12 months prior to the making of the application for divorce.
In most cases, de-facto relationships (including same sex couples) can make application for property settlements including superannuation splitting in the Family Court and be treated with the same regard to financial matters as married couples. There are some discrepancies between states, particularly WA. You should seek legal advice. Read More:
The Four Step Process for Property Settlement
How does the Court determine a property split?
Generally, family law applies to parenting arrangements and child support for all children in the same manner, regardless of whether the parents are in a marriage or de-facto relationship. It may even be applied in some cases where the parents have not lived together.
What is a de facto relationship?
Child support agreements
Section 60I family dispute resolution certificate
The following factors are used to determine whether a de-facto relationship exists between two people (including same sex couples), but not all factors are essential:
- The length of the relationship between them
- Whether they lived in the same residence
- The nature and extent of their common residence
- Whether there is, or has been, a sexual relationship between them
- The degree of financial dependence or interdependence, and any arrangements for financial support, between them
- The ownership, use and purchase of their property (including property they own individually)
- The degree of mutual commitment by them to a shared life
- Whether they care for and support children, and
- How their relationship as a couple is perceived by others.
What is a defacto relationship?
Family violence in family law is defined as:
- A family member doing something or threatening to do something to another member of their family; or
- A family member doing or threatening to do something to the other family member's property that makes the other family member (or someone else in the family) worried or fearful for their safety.
Family violence can include physical and sexual violence, threats of violence, stalking, emotional abuse and damage to property.
Child abuse and family violence
Property settlement and family violence
A binding financial agreement must be drafted by a lawyer after consultation with you. Each case is unique and so it is difficult to state a figure. It can vary in common scenarios from between $800.00 and $3500.00 depending on your particular needs and individual circumstances.
Types of orders and agreements
You can find a list of the fees associated with the courts in the links below:
There will be other incidental costs associated with sourcing, certifying and copying documents as well as the costs involved in seeking professional advice. Preparing as much of the information as possible yourself before seeking advice will save you time and money. The Split Kit has been designed for this purpose.
If you need translated documents for the courts, they must be translated by a qualified translator. The National Accreditation Authority for Translators and Interpreters (NAATI) is the national organisation which accredits interpreters and translators. When using a private translator, look for NAATI accreditation. The translator must swear an affidavit.
The business will need to be valued and form part of the joint marital assets. You will be able to retain the business if it is allocated to you in the property split. If it is not possible to finance around retaining the business to achieve a fair and equitable property split, you may have to sell or split the business.
What happens to a family business in a property split?
Third party involvement in a property split
Probably. All Superannuation is included, regardless of when it was accrued. De facto couples in Western Australia are not subject to Superannuation splitting laws. Interests with a withdrawal benefit of less than $5,000, and those paying a non-commutable pension or an annuity of less than $2,000 per annum, have been prescribed as unsplittable interests under the FL Super Regulations.
What is included in a property settlement?
It depends on the loan agreement. If there is an existing formal, legally binding agreement in place that shows the loan was to both of you, is secured and/or there is a repayment schedule set out, it may be included in the joint marital liabilities to be distributed in a property settlement. If however, there is no documentation, no repayment schedule, the loan is not secured and there is no proof of any expectation of repayment, then it is likely to be considered as a “gift” to you and your spouse is not legally liable to repay a share.
Loans from family and friends
Third party involvement in a property settlement
Almost always the property would fall into the joint asset pool. You may elect to keep it as part of the property settlement once all of the assets of each of you have been considered and are allocated in the distribution. If it is a property that was owned long before your marriage and you have maintained it from personal funds and not used it for any financial gain during your marriage, you may be able to retain it outside the marital asset pool. You should seek legal opinion.
What is included as joint property?
How does the Court determine property split?
All property is considered to be part of the joint marital assets, regardless of whose name it is in. If it is essential that you sell property for financial security, ie to reduce debt levels, then it is advisable to discuss this with your ex-partner, and your legal and financial advisers before transacting. The proceeds of the sale of the asset will remain in the joint asset pool for distribution once you agree on a property settlement.
Spousal Maintenance is money paid after a financial settlement has been reached from a higher earning partner to their former partner. It can be paid either periodically over a period of time or as a lump sum. It is separate to Child Support. You may have heard it referred to as Alimony (USA) or Spousal Support.
Types of orders and agreements
No. Leaving the home should not affect your right to keep it as part of the allocation of assets when you reach a property settlement. However, a Court might take into account how the property has been maintained in the interim.
How does the Court determine asset split?
The Split Kit
When your purchase is verified, your completed order will be displayed with
- your payment confirmation
- Divorce Resource username
- Split Kit licence key, and
- a link to download the executable set up file.
You must be connected to the internet to validate the licence key in The Split Kit software once it is installed on your computer. Once you have validated the licence, you may continue to work offline.
If you delay the download or product validation and forget your licence key, you can find it in your Divorce Resource user profile.
Login to the Divorce Resource website
Select 'my account' from near the login box
Select the 'My Orders' tab
Select 'Details' from the far right-hand side of your Split Kit order number
At the bottom of the order confirmation page, you will find your licence key, the username you must use to activate the Split Kit and a link to download the file.
You must be online to validate the licence code but once it has been done, you may work offline.
Warning: If you reinstall the software after you have already entered records to a previous copy, you will lose all of the information you have entered.
Unfortunately not. Divorce Resource has no access to your personal data on The Split Kit program and cannot issue you with new login details if you forget them.
When you installed the software, there was a warning regarding this and a recommendation to record both username and password somewhere. Are you sure you didn't?
You are able to download the software again and reuse your acitvation key, provided you install it on the same hardware. Unfortunately, the new software will not retrieve the data you had already entered.
Once you are logged in to our website, you can find the downloadable file and licence key in the details or 'My Orders' in 'My Account' section of our website.
When your purchase was confirmed, you received an email containing a link to the executable file. This was a follow up email to the initial confirmation. You can either relocate this email and follow the link or there is a link to the program file download in your Divorce Resource website user profile under the 'details' of 'My Orders'.