Marriage breaking down?
Is divorce the only answer?
If your marriage or de facto relationship has reached a crisis stage for you or your partner, consider counselling before separation.
Reconciliation and separation counselling services are offered by many organisations, including Family Relationship Centres, and other organisations such as Relationships Australia, Uniting Care Unifam, CentaCare, and Interrelate Family Centres. Counselling may be undertaken at any stage in your relationship and all discussions are confidential. The earlier you have counselling the better, as you may be able to repair and improve your relationship. If you do separate, counselling may help you separate on better terms or at least help you prepare for the transitions that face you, your former partner and any child or children of the family.
If counselling doesn’t work, how do I get a divorce?
The only ground for divorce is irretrievable breakdown of the marriage. To obtain a divorce after marriage has irretrievably broken down, you and your spouse must have lived separately for at least one year. Either spouse can apply to the Federal Magistrates Court for a divorce.
Do I need a lawyer to get a divorce?
In straightforward cases where there is no major conflict about children, it is permissible and usually simple to obtain a divorce without using a Solicitor.
You will need to see a Solicitor if you and your spouse are in dispute about a child or child support, because the court may not allow the divorce to become final unless it is satisfied that proper arrangements have been made for children under 18 years.
Before you try to settle any disputes about property or other financial matters, you should obtain advice from a Solicitor about your legal rights.
If you visit a family relationships centre for assistance about parenting arrangements, a family specialist will talk to you about family dispute resolution (sometimes called “FDR”). FDR includes mediation and other similar options. If your situation is suited to FDR, one of the government-sponsored family relationships centres may give you the first three hours of assistance without charge. They can also give you educational materials about families – whether you are separating or only having temporary difficulties.
We can’t afford to have two homes
You and your spouse can live separately and apart under the same roof during the separation period, although it can feel stressful to do so.
If you intend to live separately in the same home, it would be wise to consult a Solicitor first, because living in the same home complicates a divorce. When you apply for the divorce, someone who knows you and your spouse may have to tell the court that you have lived separate lives while still under the same roof.
Who will the children live with? How are parental responsibilities shared?
The short answer is “as agreed between the parents”. Parents should try to agree on a parenting plan or parenting orders for their children when they separate. If you and your spouse or former partner cannot agree on arrangements, you will need legal advice. The sooner you can reach agreements, the sooner things will settle down. Your agreements need to be based on “the best interests of the children”.
As well as being what most parents want for their child or children, the best interests of the child is a legal principle under the Family Law Act. The courts apply it in those cases that require a judge or Federal Magistrate to make a decision. In determining what is in the best interests of a child, the two primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm arising from abuse, neglect or family violence. There are additional considerations, including the age, sex and maturity of the child, views expressed by the child, and the relationship of the child with each parent and other relatives.
If parents are in disagreement and the court is asked to make a decision, the court must consider – except in cases of family violence, child abuse or other good reason – if it is reasonably practicable and in the best interests of the child for the child to spend equal time with each parent, or substantial and significant time with each parent . These are often called “shared parenting” arrangements.
If the children do not live with you, you should discuss arrangements for them to spend time with and have telephone and email communication with you.
Do I have to pay child support for my children or maintenance for my spouse?
Both parents are responsible for the financial support of their children until each child reaches the age of 18 or until completion of the school year in which the child turns 18. Child support can be paid as the parents agree, or it can be assessed by the Child Support Agency, which uses formulas it has developed for the purpose.
The Child Support laws are complex. If you wish to know what amount is payable, you may contact the Child Support Agency or speak to a Solicitor who practises in this area.
In relation to maintenance, each spouse or former de facto partner is expected to try to support himself or herself after separation. However, maintenance may be payable if one spouse/partner is unable to meet their own needs. Common examples are a spouse/partner having the care of young children or a spouse/partner being unable to work because of a disability.
How will our property be divided?
Most settlements are resolved by agreement with ‘consent orders’ being made by a family law court. A property settlement can be finalised at any time after separation and before either spouse applies for divorce. However, a court application for property settlement or spousal maintenance must be filed within 12 months of the divorce, or you will need the court’s permission to apply out of time.
All property and financial resources belonging to you and your spouse are relevant, including interests in companies, family trusts and superannuation.
Tell your Solicitor how you would like to negotiate a settlement with your spouse or former de facto partner and what is important to you. Ask your Solicitor for information and advice about the different options available, for example, collaborative law and practice, mediation, conciliation and arbitration as alternatives to court.
Financial agreements, including ‘pre-nuptial agreements’
Couples who are or have been in married or in a de facto relationship can enter into binding financial agreements before or during the marriage (or the de facto relationship) or after separation or divorce. To be binding, each party must obtain independent legal advice about the agreement from a Solicitor before they sign it.
How will a solicitor help me?
Your solicitor can:
- Advise you of the availability of counselling and mediation services
- Advise you about your rights regarding children, maintenance and property;
- Check any agreement you have made and tell you how it can be changed or enforced;
- Advise you about the possibility of resolving or narrowing issues in dispute by using services such as counselling, conciliation and mediation;
- Negotiate a settlement of financial or parenting issues on your behalf;
- Represent you in court if there is a dispute about children, property, maintenance or child support;
- Solicitors practising collaborative law aim to help you to resolve all issues without going to court.
- Law Society of NSW
- 170 Phillip Street
- Sydney NSW 2000
- DX 362 Sydney
- T: (02) 9926 0333
- F: (02) 9231 5809
- E: email@example.com