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Q. Is there such thing as “formal separation”?
A. The quick answer is that as soon as you have communicated that you are “separated” you are. There needs to be a genuine belief that your relationship is over and that this has been made clear to your partner.
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Q. Can I be separated and still live with my partner?
A. Yes! But there needs to be a clear separation of your dependency on each other as partners. For instance, a change in behaviour of cooking and cleaning for each other, a separation of finances, a separation of attending social and family functions….these changes show that there has been a genuine separation.
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Q. When can I get a Divorce?
A. The short answer is 1 year after you separate. It cannot be before that but it can be anytime after that.
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Q. Are there time limitations for Property settlement and Spousal Maintenance?
A. Yes.
– In a DeFacto relationship this is 2 years from separation (or anytime before);
– In a Marriage this is 1 year from Divorce (or anytime before).
Q. Does everyone get equal time with the children?
A. No. There is a presumption that the parents will have equal parental responsibility for the children but this does not mean equal time. If there is equal parental responsibility there is a further presumption that each parent will have substantial time with the children however what this means differs from case to case and is always dependent on the children’s best interests.
Q. How do I get equal time with my children?
A. Some of the considerations in these matters are:
– Practicality including distance, working arrangements, affordability etc;
– Communication including the parties ability to communicate effectively with regard to the children;
– Special needs or considerations such as physical and psychological health, behavioural issues and the like;
– Cultural needs and exposure;
– Willingness to support and facilitate the other parent’s relationship with the children;
– Routines of the children being able to be maintained through both households.
Q. Does my Family Law matter have to go to Court?
A. No. There are many ways to resolve Family Law matters. Some ways other than Court:
– Negotiation between the two of you;
– Mediate with a trusted friend or family member;
– Mediate with a paid professional mediator;
– Mediate with solicitors;
– Arbitration where the parties agree to comply with the decision of a private arbitrator.
Q. How can we formalise our private agreement so that it is Binding?
A. You can formalise by filing a Consent Order in Court; or you can sign a Financial Agreement which would require each of you to have independent legal advice and a solicitors certificate confirming that you have each been provided with information on the advantages and disadvantages of entering into the Agreement.
Q. How do I protect my children from this separation?
A. First and foremost it is so important that the children are protected from being involved in the “adult issues”. They need to still be children and they need to feel secure and a priority even in the midst of the difficulties. Read our Blog on “Parental Conflict on separation and the effects on children?”. This will also provide some links to supportive organisations who can help.
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Q. When should I get started with my discussing a property settlement after separation?
A. Now! It is important that discussions about your finances starts very soon after separation. Read our Blog on “I’m separating – what do I need to know about our finances?”
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Q. How much will a lawyer cost me?
A. There are so many variables which can affect the cost of your legal matter. In almost every situation you can reduce the amount you spend by being organised with documentation, sticking to the issues at hand, listening to advice and providing clear instructions. Read our Blog on “Tips to reduce your legal fees?”
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Q. What if the other party does not obey an Order?
A. Depending on the severity of the breach you may simply write (or email them) and advise them that they are in breach and that it is not acceptable and future breaches will require an escalation in your response. You may seek to get a solicitor to write to them about the consequences of future breaches or you may file a Contravention Application with the Court seeking penalties be imposed. You may also simply seek an Enforcement of the Agreement through the Court, especially in financial matters. Read our Blog on “Contravention Applications – Parenting Orders?”
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