Following a separation, it can be difficult to know what to do first. It is a common misconception that once you make the decision to separate, the next logical step is to apply for a Divorce. However, whilst a Divorce Order will legally terminate a marriage, an Application for Divorce does not include orders for property, parenting or maintenance. In this article, we look at the key differences between separation and Divorce.
What does it mean to be legally separated?
Separation from your former spouse or de facto partner, will mean that at least one party has communicated to the other that the relationship is at an end. It will also generally mean that either you or your spouse or de facto partner have moved out of the home you were living in together and are living in separate residences.
Whilst you can be considered to be separated if you remain living under the one roof, it will depend on whether or not your specific circumstances are likely to satisfy the Federal Circuit and Family Court of Australia (FCFCOA) that there has been a separation under one roof. This is more relevant for an Application for Divorce - see further below in the article where we discuss this. You should obtain legal advice in regard to your circumstances prior to filing an Application for Divorce.
If you are contemplating a separation or have already separated, you will likely need to consider the following:
- Property settlement: this includes how you will divide assets, liabilities and financial resources, including any real property you own in your sole name or your former spouse or de facto partner's sole name or jointly with another person;
- Parenting arrangements: for any children under the age of 18 years old, including who will have parental responsibility for the child/ren; where the child/ren live and how the child/ren will spend time with and communicate with the other parent;
- Spousal maintenance: if relevant to your individual circumstances; and
- Application for Divorce: subject to the requirements being satisfied, you can file either a Sole Application for Divorce (only you will need to sign the application) or a Joint Application for Divorce (both you and your former spouse will need to sign the application). A Sole Application is required to be served on your former spouse. You are unable to serve the application yourself and will need to arrange a family member, friend or process server to serve the documents on your former spouse. If you have filed a Sole Application and there is a child/ren that are under the age of 18 years, you will be required to appear at the Divorce Hearing.
There is no minimum time (unlike a Divorce), that you are required to be separated from your former spouse or de facto partner to consider parenting, property and spousal maintenance matters.
Property / Financial Orders
When the FCFCOA is considering what orders to make in regards to a property adjustment there are various factors that will be taken into account, including:
- What the asset pool consists of including assets, liabilities and financial resources;
- What financial and non-financial contributions each of the parties have made at the commencement of cohabitation, during the relationship and since separation;
- Any future needs factors, meaning factors that may require a party to be given a further adjustment based on factors that include the care of the child, wage disparity, ill health or age of either party; and
- Whether the orders sought are Just and Equitable.
A common misconception is that the FCFCOA will always make an order for each party to walk away with a 50/50 split. This is not always the case. Instead, the Courts will look at a variety of factors, including the length of the relationship and at what point of the relationship, any contributions were made by a party.
Given every matter will be different in terms of the relevant circumstances, you should consider seeking legal advice from an experienced family lawyer to assist you through the process and ensure the property and assets of the relationship are divided in a way that is within the range of your entitlement at law.
If there are children of the relationship, you will also need to consider arrangements (usually in the form of a Parenting Plan or Consent Orders) as to how care of the children will be shared. A Parenting Plan or Consent Orders will require both parents to reach an agreement as to the arrangements.
It is important to note that a Parenting Plan is not legally binding or enforceable, in that, breach of a Parenting Plan (after attempts have been made to resolve the issue in dispute) will likely require proceedings to be commenced in the FCFCOA. Whereas Consent Orders can be enforced through a Contravention Application made to the FCFCOA, by the party alleging the orders were not complied with.
To learn more about this process and which document is right for you, see our section on formalising your parenting agreement.
A party may only make a Spousal Maintenance application, when they are able to satisfy the Court of the factors set out in the relevant sections of the Family Law Act 1975.
In the first instance, the party seeking the order will need to consider if an urgent spousal maintenance order or an interim spousal maintenance order is required, and they will also need to establish (provide evidence) that they are unable to adequately support themselves and the other party is reasonably able to do so.
Application for Divorce
It is a requirement in Australia, that the FCFCOA must be satisfied that you and your former spouse were separated and thereafter living separately and apart for a continuous period of 12 months before an Application for Divorce can be filed. The FCFCOA must also be satisfied that there is no reasonable likelihood of cohabitation being resumed.
You can find out more about the process to obtain a Divorce in our section on the Stages of a Divorce.
You should also consider that once a Divorce Order becomes final 1 month and 1 day after it is made, there is a 12-month time limitation on an application being made for Spousal Maintenance and/or Property Orders. The time limitation for de facto partners, is two years from the date of separation.
Need assistance from a family lawyer with issues relating to your separation or Divorce?
Going through a separation or Divorce can be an emotionally challenging time, and it's important to have the right help around you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.