We regularly assist people who are considering separation and wanting their questions answered
so they can consider their options and make informed decisions
We have considerable experience in providing legal advice and guidance to people experiencing relationship breakdown, to successfully navigate their separation and subsequent divorce.
There are common misconceptions about what “separation” and “divorce” really mean. In the initial stages following their separation about the implications of separation and divorce on finalising a property settlement.
Australian Law operates on the principle of no-fault divorce. This means that a court does not consider why the marriage ended. The Court is able to grant a divorce if there has been an irretrievable breakdown of marriage. In order to satisfy the Court that the marriage has broken down irretrievably the couple must have been separated for at least twelve months and one day. This means a person cannot apply for divorce until the parties have been separated for twelve months and one day.
It is possible for a couple to be separated but to continue living in the same home during the twelve months, which is known as ‘separation under the one roof’. If the couple is separated under the one roof they need to prove to the Court that they were actually separated during this time.
If there are children aged under 18 years of age, a Court will only grant a divorce if it is satisfied that proper arrangements have been made for them.
A Divorce is entirely separate from any other proceedings between a husband and wife and there is no obligation on a party to make an Application for a Divorce or already be divorced before taking steps to finalise any other aspect of the marriage breakdown including property settlement, spouse maintenance or parenting arrangements for children.
It is important to be aware that proceedings for property settlement and spousal maintenance must be commenced within one year of the divorce. Applications can only be made after this period with the approval of the Court, and this can be difficult to obtain.
For people separating who have been in a de facto relationship any proceedings for property settlement or spouse maintenance must be commenced within two years of separation.