Family Law General FAQ
1. My former partner/spouse and I have separated, what do we do now?
It’s important that you take the appropriate time to come to terms with the separation, ensure that you are in a good headspace and have support systems around you before attending to the legal arrangements for separation. Click here to read some of our practical tips for approaching separation.
There are four main aspects of a separation, all or only some of which may be relevant to you:
Divorce;
Property Settlement and Spousal Maintenance;
Parenting Arrangements; and
Child Support.
Continue reading below for some general information regarding family law matters, and for links to our articles on specific aspects.
2. Which legislation and Court is relevant to family law?
There is federal family law legislation called the Family Law Act 1975 (Cth) which governs almost all family law issues that may arise throughout most of Australia. The Federal Circuit and Family Court of Australia (FCFCOA) has the jurisdiction to hear all cases brought under the Family Law Act. The exception is Western Australia, which has its own family law legislation and court.
The Family Law Act deals with divorce, property, maintenance, and parenting orders.
Child support is also governed at a federal level, however under separate legislation, being the Child Support (Assessment) Act 1989.
The legislation is necessarily complex in order to cover the wide range of issues relevant to family law. It can be understandably confusing for separated parties to understand and interpret the legislation, so seeking legal advice from an experienced family lawyer is important to help make sense of this often overwhelming process.
3. Where can I find out some more general information about family law that I know is correct and easy to understand?
The Family Law team at Harwood Andrews takes time to prepare and publish articles on important topics and common queries which are often raised by clients. Continue reading this article and follow the links to see the answers to some questions you may have.
Click here to read our FAQ on property settlement matters.
Click here to browse our other articles and to read about other topics which may be relevant to your separation.
The Family Law team at Harwood Andrews offer an initial consultation for up to 1 hour at a fixed fee of $350 inclusive of GST. In this initial appointment we can discuss a range of issues relevant to your separation, and assist you in taking the first steps to make the legal arrangements for your separation. Click here to schedule an appointment with one of our team members.
We otherwise recommend the FCFCOA website which contains additional information about family law: https://www.fcfcoa.gov.au/. The FCFCOA has a fantastic, user-friendly website with lots of information in easy to understand language for parties going through a separation and can provide some helpful information to assist you to understand the legal process of separating.
4. I’ve been doing some research and I’m confused about the terminology and legal jargon?
We’ve put together a guide of definitions for some common family law terms you may come across online or when speaking to a lawyer. Click here to read our guide.
5. Can one lawyer represent both me and my former partner/spouse?
It is common that where a separation has occurred amicably, the parties are keen to negotiate, settle and finalise their family law matters as swiftly and efficiently as possible. Therefore, it is also common for separated parties to ask if one lawyer or one single law firm can represent both parties.
The simple answer is no.
This situation would give rise to a conflict of interest. Lawyers are required to give independent legal advice to clients, and act in the best interests of their client. In a family law matter, it is common that the best interests of the parties may be in conflict with one another, and a lawyer could therefore not meet their obligations by giving advice to both parties.
If you and your former partner/spouse both want to seek legal advice from Harwood Andrews, only one party can be our client, and then we can provide a referral to a reputable alternate law firm for the other party to seek independent legal advice about the separation.
6. What are the legal requirements for a divorce?
Divorce is the legal end of a marriage. The granting of a divorce does not determine issues of property settlement or parenting arrangements. It is simply a formal recognition that the marriage has ended.
Australia has ‘no fault’ divorce. This means that when granting a divorce, the Court does not consider the reason/s the marriage ended. Neither spouse needs to prove that the other did (or did not) do something which caused the breakdown of the marriage. The only requirements for a divorce to be obtained is that the marriage broke down, you have been separated for a period of at least 12 months, and there is no reasonable chance that the parties will get back together.
Click here to read our article answering some commonly asked questions about divorce.
Harwood Andrews can represent you to apply for a divorce. However, if you wish to apply for a divorce without legal representation, you are able to do so, but you must still comply with the legislative requirements. One significant requirement is that your spouse is correctly served with your Application for Divorce.
Click here to read our article answering some common queries about service of divorce documents.
7. We were in a de facto relationship, not married. Do we still need to make legal arrangements for our separation?
Yes. Under the Family Law Act, the rules regarding married couples and de facto couples are effectively the same. However, under the Family Law Act, a property settlement for a de facto relationship must occur within 2 years of separation. Outside of this time limit, any application made to the Court (whether by consent or seeking to commence litigation) can only be made with the permission of the Court to do so.
8. What is the legal threshold to be recognised as a ‘de facto’ relationship?
Before the Court can determine your de facto property matters, you must satisfy the Court that you were in a genuine de facto relationship with your former partner, which has now broken down.
The definition of a de facto relationship in the Family Law Act is broad and includes where the parties were not legally married, not related by family, and having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
There are a wide range of factors which the legislation identifies in order to determine whether there was a de facto relationship between parties, including any or all of the following:
the duration of the relationship;
the nature and extent of their common residence;
whether a sexual relationship exists;
the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
the ownership, use and acquisition of their property;
the degree of mutual commitment to a shared life;
whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
the care and support of children; and
the reputation and public aspects of the relationship.
If you are not sure whether your relationship meets the threshold of a ‘de facto relationship’, we recommend booking an initial consultation with one of our Family Law team members who can step through this process with you and provide our expert advice in this regard.
9. Should I move out of the house now we have separated?
The answer depends on your circumstances and there is no one right answer that fits every case. If possible, it would be best to have an amicable discussion with your former partner/spouse about the most appropriate living arrangements moving forward. Some factors you may want to take into consideration are as follows:
Is the home going to be sold or does one party wish to retain in in your family law property settlement?
If you have children who are living in the home, it may be best for the primary carer to remain in the home with the children.
Is one party better placed than the other the meet the costs, mortgage and/or outgoings of remaining in the home?
Is the home located closer to one person’s place of work?
Will it be easier for one party to obtain rental accommodation due to their income?
Is there an investment property that one party could move into instead?
Is it appropriate for you both to remain in the home, separated under one roof, until suitable alternative arrangements can be made?
Are there safety concerns that mean it is better for you to relocate, even temporarily, to ensure yours and/or the safety of children?
There is no one determinative factor. Moving out of the house does not mean that you are forfeiting any entitlements as part of a family law property settlement, or that the living arrangements can’t change into the future, or that you couldn’t ultimately retain the home in the family law property settlement.
You should seek legal advice about the most appropriate arrangements in your individual family circumstances and advice as to how mortgage or rental payments should be contributed to by the parties’ post-separation, until a property settlement is formalised.
10. Can I change the locks on the house?
If your former partner/spouse has relocated away from the former family home, you have a general right to expect the sole use and occupation of the home. This does not mean that you can ban them from entering or returning to the home, however, if they wish to enter the home for any reason, they should generally seek your consent. If you have concerns about your safety in the home following separation, it may be appropriate for you to change the locks on the house so that your former partner/spouse cannot forcibly gain access without your consent.
However, if you are not on the title to the property, you should seek legal advice before changing the locks. You should also consider whether applying for a Family Violence Intervention Order is appropriate in your circumstances if you have safety concerns, which could, if granted, include provisions to prevent your former partner/spouse from approaching or entering the home. Alternatively, an application may be able to be made to the FCFCOA in relation to the sole use and occupation of the former family home. Again, you should seek legal advice specific to your personal circumstances.
Our Family Law team can provide advice and assist with all aspects of your family law matter. Please contact us if you would like advice specific to your personal circumstances about any of the above matters, or your family law matter generally. If you have any questions about how any of the above general information applies to your matter, or to make a start on your property settlement or parenting arrangement negotiations, click here to book an appointment with one of our family lawyers.
Tara Paatsch
Principal Lawyer
M 0412 660 842 | T 03 5225 5254
E tpaatsch@ha.legal
Natasha Vassallo
Lawyer
T 03 5225 5237
E nvassallo@ha.legal
