Kroesen and Co Lawyers – Family Law FAQ
What does the law consider to be ‘separation’?
In the eyes of the law, separation is when one partner has communicated that the relationship has ended to the other and the parties stop acting as a genuine couple. For example, you may stop eating meals together, stop attending social functions together and would no longer sleep in the same room.
Alternatively, separation occurs when both parties have agreed that the relationship is over and have moved into separate accommodation.
Importantly, you may be separated under one roof for a time and do not need to live separately to be separated.
How and when can I apply for Divorce?
If you have been separated for at least 12 months, you can apply for a Divorce.
To apply for a Divorce an Application for Divorce must be filed with the Federal Circuit Court of Australia.
How are Bank Accounts, Property and Assets Divided?
There are two ways that property can be split.
You and your ex-partner can either agree on how the property should be split or the property can be split by a determination of the Court.
We recommend you meet with us before you do or say anything to your ex-partner. We can also provide advice about whether a proposed agreement is fair to you.
What happens if one party doesn’t agree?
It is not uncommon for parties not to agree on a property settlement.
If the parties do not agree, and all the Alternative Dispute Resolution avenues have been utilised without reaching an agreement, the parties will have to go to Court for a final determination.
The Court will consider many factors in making a determination and these are often unique to each situation, as there are many factors that a court must take into account before making an order adjusting property interests.
Spousal Maintenance is separate from child support, and is a once off payment or ongoing payments from one party to the other for living expenses.
There is no automatic entitlement to Spousal Maintenance. Spousal Maintenance must be obtained by an agreement between the parties or by a Court order.
Who gets the children?
When a relationship breaks-down, the Courts will focus on what is in the best interests for the children of that relationship, not the parents. As such, the following are considered to be foremost in the Court’s mind:
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.
What is a Parenting Order?
A Parenting Order is an order made by the court regarding the living arrangement and the times the other party spends with the children. It is binding and enforceable on all Parties.
A parenting order can be made:
by the parents applying, by consent for a parenting order which they have previously agreed on; or
by the court, after a hearing.
If the parties agree by consent, orders that are made are just as binding and enforceable as if the orders were made by the Court.
Sometimes circumstances change, for example, one party gets a job interstate, so Parenting orders may be amended by amending the parenting plan or, or if the parties do not agree, amended orders can be made by a Court.