The reality is though, a large proportion of relationships and marriages do end and for a variety of reasons, but it’s important to know that you haven’t “failed”. Go easy on yourself. Separation is a significant event, often with emotional, financial, and physical repercussions.
Accurate and timely legal advice can provide you with the information you need in order to be able to take the next steps forward, both comfortably and confidently.
Firstly, it’s important to distinguish that “divorce” is simply the legal dissolution of a marriage – it does not include the process of dividing property, finalising parenting arrangements, child support, or other factors that may arise following separation.
If you have already finalised arrangements relating to property division and parenting arrangements, jump to the divorce section of this webpage.
I’m thinking about separation
Most separations don’t start with a slammed door. They start with quiet, serious thinking, often on the drive to work after a hard weekend or once the kids are in bed. If that’s you, you’re not alone, even if it feels that way.
Guilt, fear about what happens next, worry about the kids and sadness are all normal. Lean on family and friends you trust, and get outside support where you need it.
Getting advice doesn’t lock you into separating. Some of the people we meet are only thinking about separation, and some of them go on to reconcile.
A specialist family lawyer can explain where you stand now, how separation would work, what your options are and how to prepare for it. We can also connect you with other support, such as a counsellor, psychologist, accountant or financial adviser.
Family lawyers must also give you information about services that may help with reconciliation. Every couple is different, and counselling may help you decide whether to stay together.
Best Wilson Buckley offers fixed-fee, no-obligation initial appointments that are entirely confidential. We won’t contact the other person, or anyone else, without your express consent. We will ask for their name and date of birth, but only to check we can act for you, because we can only advise one person in a separation.
I think my spouse is contemplating separation
It’s hard when your partner is ready to end the relationship before you are. If you feel comfortable, talk to them about how you’re feeling, and consider seeing a marriage counsellor or psychologist.
If things aren’t amicable, or you have safety concerns, speaking to a specialist family lawyer early can help you understand where you stand and how to approach conversations about separation. If you or your children are in immediate danger, call 000.
Separation doesn’t need both people to agree. One person can start it, provided certain further steps are then taken. The rules on the timing and effect of separation are slightly different for de facto and married couples, so get advice about your situation early. Who starts the separation has no bearing on who stays in the home, or what happens with your property or children.
Worried about paying the bills after separation?
Worrying about the mortgage or rent, the bills and groceries for you and the kids can make separation much harder. In some situations, a separated spouse or de facto partner can ask for financial support from the other, known as spousal maintenance. Whether it applies depends on your circumstances.
Speak to one of our family lawyers to find out where you stand.
We’re separating at the moment
Whether it was a joint decision or not, you can’t fully prepare for separation, especially emotionally. Working through some practical questions now can help you build a more workable relationship for the future:
- Is separation the answer?
- How will we explain our decision to the children?
- How can the children keep the same time and contact with each of us straight after separation?
- How do we keep disruption to the children to a minimum?
- What living and financial decisions can we make together now?
- How will we keep paying our bills and joint debts until we agree on dividing our property?
- What happens to our joint bank accounts in the short term?
- Can we agree on how to divide household contents, furniture and cars?
- How do we avoid spiralling into conflict?
Shock, grief, anger and guilt can make these hard to answer. For your children’s sake, try to set those feelings aside as much as you can.
If you can’t reach even basic agreement, consider getting support from a specialist family lawyer or counsellor. You may also need to think about:
- Am I concerned for my safety or the children’s safety?
- Should I open my own bank account?
- Do I need to change passwords and PINs for internet banking, email and social media?
- Do I need to change the names on accounts like internet, phone, insurance and utilities?
- Do I need to take steps to protect my interest in our property, including cash?
- What do I need to take with me?
- Do I need to tell Centrelink or other government departments?
- Is it time to update my will, enduring power of attorney, and the beneficiaries of my super and life insurance?
At a fixed-fee, no-obligation initial appointment, an expert family lawyer can help you work through these questions and explain what happens next.
We’ve separated and I’m not sure what’s next
Nobody teaches us how to separate. Well-meaning family, friends and colleagues can only tell you about their own experience, not how your separation and divorce will play out.
You probably have a long list of questions keeping you up at night:
- Where will the children live, and how much time will they spend with the other parent?
- How do we divide our assets and property?
- Will I be financially secure after this?
- What about child support and spousal maintenance?
- How do I get a divorce?
- Will we have to go to court?
A family lawyer can help you work through each of these. Now is a good time to find one who’s right for you and book a first meeting.
If you’re feeling out of control, you can choose to:
- put your children’s wellbeing first;
- respect the other parent’s role;
- make a plan for your own health and wellbeing, and stick to it; and
- get advice from an expert family lawyer.
We separated a while ago and I want to get things sorted
Now you’re ready to deal with the legal side of your separation, expert family law advice is important. You can get immediate answers to your options online now.
Your children’s wellbeing and your financial security matter most. If you haven’t already, get advice on both, and on the right timing for your situation, before you formally divorce.
Remember, divorce only ends your marriage legally. Parenting arrangements, property settlements and child support are separate areas of family law and are dealt with separately.
Time limits also apply under the Family Law Act. If negotiation or mediation doesn’t work and you need to apply to the court for a property settlement, married couples must apply within 12 months after the date of their divorce order. After that, you can only go ahead if the court gives you permission to proceed “out of time”, and that isn’t guaranteed. Our advice is always to apply within the 12 months, or before you formally divorce.
When can I get divorced?
You need to satisfy the court that your marriage has irretrievably broken down. You do this by showing you and your spouse have been separated for at least 12 months before you apply.
Either you or your spouse must also:
- be an Australian citizen by birth, descent or grant of citizenship; or
- regard Australia as your home and intend to live here indefinitely; or
- ordinarily live in Australia and have done so for the 12 months immediately before applying.
The court also looks at:
- the length of the marriage. If it’s less than two years, you must attend counselling and get a certificate from a relationship counsellor stating you’ve considered reconciling;
- care arrangements for children under 18; and
- whether you’re applying together (a joint application) or on your own (a sole application).
What if we still live under the same roof?
You can still get a divorce if you live in the same house. This is called “separation under one roof”, and you’ll need to give the court evidence of things like:
- a change in sleeping arrangements;
- fewer shared activities;
- fewer shared household duties;
- splitting shared financial accounts;
- telling government departments or other organisations; or
- telling family and friends you’ve separated.
It wasn’t my fault that the marriage broke down
Australia has no-fault divorce, so the court doesn’t consider why the marriage ended. A good family lawyer will remind you of this and encourage you to focus on reaching an amicable resolution wherever possible.
What if my spouse doesn’t agree to the divorce?
You can apply for divorce jointly with your spouse, or on your own in a sole application. If your spouse doesn’t agree, you can make a sole application. It must be served on your spouse, and if there are children under 18, you’ll need to attend the court hearing.
With a joint application and no children under 18, neither of you needs to attend court.
How long does the process take?
Preparing a divorce application is usually straightforward if you meet the criteria. Once it’s filed, the court gives you a hearing date. If the court grants the divorce, the divorce order takes effect one month and one day later.
What documents do I need for a divorce?
- your government-issued marriage certificate, or a translated copy if you married overseas and it isn’t in English;
- contact details for your spouse or their solicitor; and
- any concession card (such as a Health Care Card or Pensioner Concession Card), which lets you apply for a reduced court filing fee.
Do I have to go to court to get divorced?
The court is involved in every divorce, but whether you need to attend depends on your situation:
- No children under 18: you don’t need to attend the hearing.
- Joint application with children under 18: you don’t need to attend the hearing.
- Sole application with children under 18: you must attend. Your spouse only needs to attend if they’ve filed a Response to Divorce and oppose the application.
A divorce hearing doesn’t deal with property settlement or parenting arrangements. Those are dealt with separately.
Divorce for same-sex couples married before 9 December 2017
Same-sex couples whose marriages are recognised in Australia can divorce in the same way as any other couple, regardless of when they married. This includes couples married overseas before 9 December 2017. If you married on or after 9 December 2017, the counselling requirements also apply.
