Frequently Asked Questions


Separation

Separation is the point at which a relationship between spouses or de facto partners ends.

Sometimes people disagree about the date of separation. Usually this will not be a problem, but sometimes the date of separation can be relevant to how property is divided.

If there is a dispute about the date of separation and it is necessary for the Court to make a decision about this, the Court will consider a range of factors including:

  • What the parties said to each other about the relationship being at an end and when those comments were made
  • When parties told other people, including children, that the relationship had ended
  • When parties separated their finances
  • When the parties stopped having a sexual relationship
  • When the parties physically separated into separate bedrooms or houses.

No single factor is determinative of separation.

There is no form to sign to evidence separation. There is no separation register.

However, if you are applying for Centrelink benefits, you may need to sign a statutory declaration confirming that you and your partner have separated.

Yes, the law recognises that couples can be separated even if they are still living in the same house. It is not uncommon for couples to continue to live in the same house for a period of time after they have separated, until one person is able to move somewhere else.

You should take your personal possessions, such as clothing, with you when you move out. Whether it is appropriate to take other items will depend on your personal situation. It is best to try and reach an agreement with the other person about taking other items, but sometimes this may not be possible.

We recommend you speak to our family lawyers before you move out if possible, so that we can advise you what would be appropriate in your situation.

This will depend on your particular situation. It might be appropriate for the other person to pay all of the mortgage or for you to contribute towards the mortgage instalments.

Our family lawyers will be able to advise you what is appropriate for your situation.

We recommend you speak to our family lawyers as early in the separation process as possible, or even before you separate, so we can advise you about this.

It can be difficult when both people want to remain in the same house after separation. There is no "one size fits all" answer to this question.

If you are in this situation, we recommend you make an appointment to see our family lawyers as soon as possible so we can discuss your options and what strategies you can take to resolve this situation.

If you are in immediate danger, call the Police.

Our family lawyers can also talk to you about obtaining an Intervention Order.

Child support payments can be agreed or determined by the Child Support Agency. The Child Support Agency can provide an assessment of how much child support you have to pay or how much you will receive.

The assessment will be based on your income, the other parent's income, the amount of time the children spend with each of you and the ages of the children.

To calculate child support, click here for the Child Support Agency's estimator

Yes. Seeing a lawyer before you separate can give you more options. If you do separate, it can make things less complicated if you have obtained advice about your rights and entitlements early on. Our family lawyers will support you through the separation process and can refer you to other professionals who can assist you as well.

There are a number of different approaches you can take to try and reach agreement with your partner about your family law matters. Our family lawyers can help you choose the best approach for your particular situation.

The most common approaches include direct discussions with your partner, mediation, lawyer assisted negotiations, Collaborative Law, arbitration and litigation (Family Court proceedings). Sometimes a combination of these approaches works best.

Whichever approach you choose, our family lawyers can guide you through the negotiation process and provide you with support, resources, information and advice about your legal rights and entitlements.

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Divorce

You must be separated for at least 12 months before you can apply for a divorce. But you do not need to wait until then to work out arrangements for children and a property settlement.

Applications for divorce are made to the Federal Magistrates Court. You can lodge the divorce application yourself, or we can assist you with this. If you would like to apply for a divorce yourself, click here for the Court's Divorce Application Kit

As long as you have been separated for 12 months, you can apply for a divorce. This applies even if you and your spouse are still living in the same house or have not been living in separate houses for a full 12 months. However, in this case, you and a third person will need to file supporting statements, in the form of affidavits, with the Court. We recommend that our experienced family lawyers assist you with the application in this situation.

Yes, provided you or your spouse:

  • are an Australian citizen or
  • regard Australia as your home and intend to live here indefinitely as a citizen or resident or
  • ordinarily live in Australia and have done so for the last 12 months.

If your marriage certificate is not in English, you will have to provide the Court with an authorised translation.

At present, Australian law does not recognise gay marriages or lesbian marriages even if they are legally valid overseas.

No, divorce is a separate process from:

  • parenting and children's arrangements (custody and access)
  • child support
  • property settlement
  • spousal maintenance.

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De Facto Relationships

You are in a de facto relationship if you and your partner have a relationship as a couple and are living together on a genuine domestic basis.

Generally a de facto relationship commences when a couple in a relationship start living together in the same home. However, this is not always the case. In some circumstances a couple can be considered to be in a de facto relationship even if they have two residences.

If there is a dispute about whether a de facto relationship exists and the Court is asked to decide this, it will consider a range of matters including whether:

  • there is a common residence
  • a sexual relationship exists
  • there are joint finances
  • one person is financially supporting the other person
  • the couple present themselves publicly as a de facto couple.

The Family Law Act recognises that de facto partners can be same sex (gay or lesbian) or heterosexual.

No, in children and parenting matters, de facto couples are treated exactly the same as married couples. Both de facto couples and married couples can have disputes about children decided by the Family Court under the Family Law Act.

Yes, de facto couples who separated after 1 March 2009 can apply to the Family Court for a property settlement. De facto couples who separated before 1 March 2009 can also apply to the Family Court for a property settlement if they both agree to this.

However, the Court will only make Orders for a property settlement if:

  • The de facto relationship has lasted 2 years or more or
  • There is a child of the de facto relationship or
  • One party made a significant contribution during the relationship and there would be injustice if the Court did not make an Order for property settlement or
  • The de facto relationship is or was registered under a law of a State or Territory.

If you and your de facto partner agree, the Family Court can decide your property matter. Otherwise you may be able to apply to the Victorian State Court for a property settlement under the Relationships Act. We can advise you further about this.

Yes, either party can apply for a property settlement within 2 years of separating. The Court can give permission to apply outside of that 2 year period in limited circumstances, but you should not assume that leave will be granted.

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Property Settlement and Financial Matters for Married Couples and De facto Couples

It is always better to agree on a property settlement than go to Court. However, before you make a final agreement or divide your property, we recommend you meet with our family lawyers for advice about whether the agreement is fair to you.

Our family lawyers can also assist you in formalising your agreement by obtaining Consent Orders through the Family Court. This will make your agreement legally binding and protect each of you from further property claims. You and your partner will not have to attend Court to have the Orders made.

No, we have a no fault family law system in Australia. This means that the Family Court is not concerned with why the relationship ended when it makes decisions.

Inheritances are usually treated by the Court as an extra contribution by the person who received the inheritance. Whether the other person will share in your inheritance will depend on a number of factors, including when the inheritance was received, how much the inheritance was, what other assets there are and what future needs you and the other person have. When our family lawyers meet with you they can advise you how the inheritance is likely to be treated in your particular situation.

No, you can finalise your property settlement any time after you separate – you do not need to wait until you are divorced.

If you have not finalised your property settlement by the time of your divorce, you need to do so within 12 months of your divorce. This is because there is a time limit of 12 months to start Court proceedings after you are divorced. The Court can give permission to start Court proceedings after this 12 month period in limited circumstances, but you should not assume that permission will automatically be granted.

Yes, but in Australia it is called "spousal maintenance" for married couples or "maintenance" for de facto couples.

Spousal maintenance is an ongoing periodic or lump sum payment from one spouse to the other spouse for living expenses. You might have heard maintenance being referred to in American television shows as 'alimony'. It is separate from child support which is paid for children's expenses.

Unlike child support, there is no automatic entitlement to spousal maintenance. Spousal maintenance is paid only by agreement or by Court Order. To be successful in a claim for spousal maintenance, a spouse must be able to establish that:

  • given their current income and income earning capacity (excluding any income tested government benefits) they are unable to meet their reasonable living expenses and
  • given their spouse's income and income earning capacity, and taking into account their spouse's reasonable living expenses, their spouse can reasonably be expected to provide financial support to them.

Yes, the Court can order maintenance to be paid from one partner to another when a de facto relationship breaks down provided that:

  • the de facto relationship has lasted 2 years or more or
  • there is a child of the de facto relationship or
  • one party made a significant contribution during the relationship and there would be injustice if the Court did not make an Order for property settlement or
  • the de facto relationship is or was registered under a law of a State or Territory.

The person seeking maintenance must also satisfy the Court that:

  • given their current income and income earning capacity (excluding any income tested government benefits) they are unable to meet their reasonable living expenses and
  • given their former de facto partner's income and income earning capacity, and taking into account their former de facto partner's reasonable living expenses, their former de facto partner can reasonably be expected to provide financial support to them.

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Protecting Assets

Yes, you and your partner can enter into a Financial Agreement which provides how your assets, liabilities and superannuation will be divided if you separate. These Financial Agreements are sometimes referred to as Pre-nuptial Agreements, Cohabitation Agreements, Binding Financial Agreements or BFAs. A Financial Agreement can provide for you to keep the assets you had at the beginning of your relationship if you and your partner later separate.

Our family lawyers can advise you about the law, discuss your options and prepare a Financial Agreement for you. It is a legal requirement that your partner also obtains their own independent legal advice before entering into the Financial Agreement.

Our family lawyers assist people with Financial Agreements in a range of circumstances. A Financial Agreement may be suitable if:

  • You want to protect the assets you had before the relationship
  • You want to protect an inheritance that you have received or a future inheritance
  • You own a business and are concerned about keeping the business intact if you and your partner or spouse separate
  • You have children from a previous relationship and want to protect your assets for them if you separate
  • Your income is much higher than your partner's income
  • Your partner has come into the relationship with significant debts
  • Your parents have given you money or assets
  • You are giving up your job to have children
  • You care for an aged parent or a disabled child
  • You want to avoid a costly and stressful argument about property and finances if you and your partner separate.

Yes, since 2001 it has been possible for people to enter into binding prenuptial agreements. Under the Family Law Act, these agreements are called 'Financial Agreements'. If you and your partner enter into a Financial Agreement and later separate, your assets will be divided as set out in your Financial Agreement. However, for the Financial Agreement to be binding, it must meet strict legal requirements, including a requirement that each party obtains their own independent legal advice.

No, it is not too late to enter into a Financial Agreement. Financial Agreements (sometimes called 'prenuptial agreements') can be entered into before marriage, during marriage or even after a marriage ends.

Yes, since March 2009 it has been possible for de facto couples to enter into Financial Agreements. You can enter into a Financial Agreement before you start living together, while you are living together or after you separate.

No. The law relating to Financial Agreements is complex. In our experience, the 'one size fits all' Financial Agreements available on the internet do not provide people with the outcomes and protections they want or need. Pro-forma Agreements require substantial re-drafting, and it is more cost effective for us to prepare the Financial Agreement from the start rather than to try and make a pro-forma Agreement 'fit' your circumstances.

Our Financial Agreements are prepared by experienced and skilled family lawyers who will tailor a Financial Agreement to your specific circumstances and needs.

Financial Agreements can have a significant impact on your financial future. It is important that they are prepared properly and that you are fully advised about their content and effect. Going with a cheap option for a Financial Agreement may save you money now, but in the long run it could end up not giving you the outcome you expect and cost you dearly.

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Children and Parenting

No, parents can agree on any living arrangements they want for their children. If parents cannot agree on arrangements for children, they can ask the Family Court to decide. The Court will consider what is in the best interests of the children. The Court may decide that it is in the best interests of the children to spend equal time with each parent, but this is not necessarily the case.

The term "custody" is no longer used by the Family Court. When people talk about "custody" they are usually referring to who children will live with and who will make decisions about children.

If parents cannot agree on these issues, they can ask the Court to decide. The Court must give paramount consideration to the children's best interests when making a decision. The Court must consider a range of factors when deciding what is in a child's best interest.

The Court will make orders about who children "live with" and "spend time with" and who will have "parental responsibility" for children. Parental responsibility relates to decision making about children.

Most often the Court will order that parents have equal shared parental responsibility for children, even if the children are mainly living with one parent. If parents have equal shared parental responsibility, this means that decisions about long term issues such as education, health and religion must be made by the parents together. However, in some cases only one parent will be given responsibility for these decisions.

Under the Family Law Act, a child has a right to know and be cared for by both their parents, to the extent that this does not compromise the child's best interests.

If a child does not want to spend time with the other parent, it will be important to find out why. The child's views are one of the many things the Court has to consider when deciding parenting orders. However, this consideration will be in the context of the age and maturity of the child and whether anyone else is influencing the child's views.

The Court may decide a child should not see the other parent, or put limits on the child's contact with the other parent, if it will put the child at risk of violence or abuse.

Our experienced family lawyers can advise you what would be reasonable and appropriate in your situation and what options you have.

The Family Law Act focuses on the rights of children, not of parents. The object of the Act is to:

  • Enable children to have meaningful relationships with both their parents, to the extent that this does not compromise children's best interests
  • Protect children from physical and psychological harm, neglect and violence
  • Ensure children receive proper and adequate parenting
  • Ensure parents fulfil their duties and responsibilities.

As a parent, unless there are issues of abuse or violence, you can reasonably expect to:

  • Have ongoing involvement in your children's lives
  • See your children regularly, including on weekdays, weekends and school holidays and
  • Be involved in ongoing decision making about your children.

After separation, most grandparents see their children with the agreement of the children's parents. If that is not possible, grandparents can apply to the Family Court for an order for their grandchildren to spend time with them. The Family Court recognises that grandparents and other family members are significant to the care, welfare and development of children.

If you are having difficulty seeing your grandchildren, contact our family lawyers for advice. In most cases our family lawyers are able to help you negotiate arrangements which are workable for everyone.

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Seeing a Family Lawyer

No, seeing a lawyer does not mean that you will end up in Court. We help most of our clients reach an agreement about their family law issues without going to Court. There are many different ways of resolving family law disputes. Our family lawyers can assist you to choose the best approach for your situation.

All of our lawyers practice exclusively in family law.

Wendy Jenkins, Paul Ross and Marita Bajinskis are Accredited Family Law Specialists. This means they have passed a comprehensive examination process proving their knowledge, skills and experience in family law.

Wendy Jenkins, Paul Ross and Marita Bajinskis have combined family law experience of over 50 years.

Together with the rest of our family law team, Wendy, Paul and Marita will provide you with the very best advice, guidance and representation in family law. Click here for testimonials from some of our many satisfied clients.

It is not possible for one lawyer to act for both people in a family law matter, even if you both agree on what you want.

Our family lawyers can act for you but they cannot give legal advice to your partner. If you instruct our family lawyers to prepare documents formalising your agreement with your partner, it will be up to your partner whether they obtain their own independent legal advice about those documents.

In some circumstances, it may be necessary for your partner to obtain their own legal advice for the documents to be binding. Our family lawyers can advise you further about this when they meet with you.

We are conveniently located at Level 3, 224 Queen Street, Melbourne. We are near the intersection of Queen and Lonsdale Streets.

We are close to both Flagstaff and Melbourne Central train stations. We are also within a one block walk of the following trams: 19,57, and 59 (stopping at Lonsdale St/Elizabeth St) 24,30, and 35 (stopping at Queen St/Latrobe St), and 86,95 and 96 (stopping at Queen St/Bourke St).

There is metered parking in front of our building. For longer term parking, there is a car park next door.

Click here for our contact details and location map.

We charge according to the amount of time we need to spend on your matter. Contact us to find out our current hourly rates.

The first appointment usually lasts for between 1 hour and 1 ½ hours. The first appointment is one of the most valuable parts of the whole process. We find out what your needs are, provide you with advice about your legal rights and give you options for resolving your matter. Many of our clients comment about the clarity and sense of reassurance they feel after their first appointment with us.

At the first appointment, we will be able to give you an estimate of your legal costs going forward.

We do not provide the first appointment free. We do not do Legal Aid.

If you have been served with Court documents or you have a letter from your partner's lawyer, it is best if you send them in to us before the appointment, so our family lawyers have a chance to consider them before we meet with you.

If you are seeing us about property or financial matters, it will be helpful if you could provide a list of your assets and liabilities and your most recent superannuation statements. If you are married, please also provide a copy of your marriage certificate.

When you contact us to make an appointment, we will give you with a list of documents to bring to your appointment.

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Testimonials

I will never ever forget your kindness and gentleness with me at that rather bruising time of trying to sort out my life. So many mixed emotions and vulnerability, it was such a support to know you were there working for me, almost carrying me through.

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