FAQs

Jones Mitchell Lawyers understand that for some clients, the law can be complex and confusing.

Many clients who come to us have never seen a lawyer before. They have little knowledge of the law, let alone family law, the family law process, or what options are available to them. We understand that without knowledge, clients can become anxious and stressed, which can lead to conflict.

In these frequently asked questions, we hope you can draw on our expertise to expand your understanding and knowledge of family law to reduce the stress that can be caused by the unknown.

Questions are divided into relevant sections. If you have a question that we have not answered here, please ask us through our contact us form and one of our experienced family lawyers will get back to you.

Alternative dispute resolution

What is alternative dispute resolution?

Alternative dispute resolution describes ways of resolving legal problems outside the court process, with the objective of seeing outcomes achieved more quickly, and at reduced legal cost.  Alternative dispute resolution approaches include early neutral evaluation, mediation, and arbitration.

What is the difference between mediation, arbitration and early neutral evaluation?

Early neutral evaluation is a process where couples jointly engage an independent evaluator (usually a retired court judge, barrister, or senior specialist family lawyer) to assess the case, ‘predict’ the outcome which would be the result for them in a court situation, and invite the parties to resolve the case on that basis. Mediation is a co-operative problem-solving process where a neutral professional and qualified mediator (family law specialist) assists parties to reach an outcome on disputes to which they both consent. The mediator does not give advice or determine the case. Arbitration is the process where separating couples choose a private and qualified arbitrator to decide how their property is to be divided or whether spousal or de facto maintenance is payable, just like a judge would make a decision in court.

Arbitration

What is arbitration?

Arbitration is a form of alternative dispute resolution.  Through arbitration, separating couples – married, de facto, and same sex couples – can resolve property, financial and spousal maintenance disputes by appointing a private arbitrator to make decisions about their case for them.  The arbitrator bases their decision on the evidence presented by each party, similar to a trial.  The parties attend arbitration with their lawyers.  For many couples, arbitration is the means by which their case is resolved without having to wait for a trial in the Family Court system.   For more information on Jones Mitchell’s arbitration services, please see arbitration.

What are the advantages of arbitration?

There are several advantages of arbitration:
  • Couples can avoid the legal costs and time delays associated with litigation, by having their dispute arbitrated at an earlier stage than the Court system might allow.
  • Couples can resolve their disputes faster, allowing them to move on with their lives.
  • Couples avoid the emotional toll that protracted litigation, and delays in the Court system, can have on them and their families.
  • The arbitrator’s decision is final and can only be appealed based on an error of law, thereby providing them with earlier ‘closure’ on their dispute.

What does arbitration cost?

The cost of arbitration is usually far less than the costs of litigation. The costs of arbitration include:
  • the cost of your lawyer preparing for arbitration
  • the cost of your lawyer attending arbitration
  • the arbitrator’s fees – most often, if the parties agree, they share these fees equally.

Collaborative law

What is collaborative law?

Collaborative law is an approach to resolving separation issues based on three main principles:
  • a mutual pledge not to go to court
  • an honest exchange of information by both parties
  • a solution that focuses on the achievement of solutions which emphasise the highest priorities for the spouses and their children
Collaborative law differs from conventional legal practices. With collaborative law, you and your former partner keep control of the decisions rather than handing them over to a judge. For this to work, both parties consent in writing to be a part of a collaborative process that aims to reach an out of court resolution. The outcome is still a binding legal agreement. A collaborative approach involves progressive meetings between parties and their lawyers to produce an honest exchange of information and expectations. Financial and accounting experts can be a part of the process too, providing information to both parties, and helping to develop solutions. When the issues are discussed openly, problem solving can be more effective. Mutual respect is the driver for collaborative law. You may no longer be partners, but you can still respect each other's priorities to reach a more mutually beneficial, and long-lasting agreement about your property and children. A collaborative approach gives parties a great deal of flexibility in terms of outcomes – you can create a solution that suits your circumstances with provisions that might not be an option in a litigation forum.

What are the benefits of collaborative law?

There are three main benefits of collaborative law:
  • You can avoid imposed results by Judges trying to achieve a clean break, and therefore potentially more flexible outcomes.
  • Your outcome can often be achieved for significantly less ‘spend' on legal costs.
  • Your issues can in most cases be finalised significantly quicker than litigation.
Non-lawyers in other specialities such as accountants and social workers/psychologists can be involved to help with non-legal issues, crafting financial and parenting outcomes and to offer guidance and support. The support of lawyers and these other professionals allows the separating couple to understand the process, outcome and feel that their considerations have been heard. The separating couple also has a chance to end their separation with their respect for each other and continue their relationship as parents. All legal issues, including parenting issues, and financial and property aspects, can be addressed through collaborative law. Jones Mitchell's family lawyers have specific training in collaborative dispute resolution techniques, and can help you manage the many different aspects of divorce and separation via this means of dispute resolution.

Is my case suitable for collaborative law?

Not all cases are suitable to be resolved collaboratively. Collaborative law may be an appropriate dispute resolution option for you if you and your partner:
  • Wish to spare your children from the emotional damage litigation can cause.
  • Accept personal responsibility in moving forward and reaching agreement.
  • Can be objective in considering solutions which are appropriate for you and for your partner.
  • Believe it is important to create healthy and more holistic solutions for your family.
  • Understand and embrace the necessity to make full and frank disclosure about financial and other  issues.
  • Have, or have the capacity to achieve, mutual trust and respect.
  • Can approach problem solving openly and honestly.

Domestic and family violence

What is domestic and family violence?

Domestic violence is a term used in State legislation to describe physical, sexual, emotional, psychological or economical abuse, damage to property, threatening behaviour, coercive behaviour or other controlling or dominant behaviour, by a person who is in a ‘relevant’ relationship with another person.  A ‘relevant’ relationship includes spouses, couples, relatives and carers. Family violence under the Family Law Act means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful for their personal safety. Domestic violence issues can have dramatic impact on the management of family law situations.  You must seek specific advice about such issues so that appropriate decisions can be made about the correct course of action to be taken.

What do I do if I am subject to domestic violence?

If you have been faced with domestic or family violence, you will need to contact the police immediately.  They will be able to assist you applying for a protection order. You may also need to seek specific advice, both as to ensuring your future safety and the management of the situation, and the impact of those events on any other family law issues or family members.

Early neutral evaluation

What is early neutral evaluation?

Early neutral evaluation (ENE) is an alternative dispute resolution process where a separating couple – married, de facto, or same sex couple – work with an independent, neutral evaluator, who has specific experience and skill in family law, to help them resolve disputed issues in their case. After meeting with the couple together, hearing about the disputed issues, and reading the material provided by the couple, the evaluator provides an opinion as to the likely ‘result’ if that dispute were to go to court. The evaluator does not act as a lawyer for either party, and remains at all times independent and neutral, offering the parties and unbiased prediction of outcomes. The couple is essentially invited to accept that, based on the evaluators experience, their evaluation is likely to be the outcome in court, and to bring the dispute to an early end by adopting that evaluation now.  The separating couple can decide whether they adopt the evaluation, or to use other forms of  dispute resolution like mediation or arbitration. For more information on Jones Mitchell’s early neutral evaluation services, please see early neutral evaluation.

What are the advantages of early neutral evaluation?

One of the biggest advantages of early neutral evaluation is that the process can start at the very earliest opportunity and can be conducted within a limited period of time. In some ways, it is like ‘fast forwarding’ a trial. As a result, both the cost and delay in resolving issues is reduced, particularly in contrast to protracted litigation. ENE can be undertaken even if there are already court proceedings underway. If an agreement is reached, the court proceedings can be brought to an end. Unlike other forms of dispute resolution, the separating couple also has an opportunity to attend together, with or without lawyers. While other forms of dispute resolution like mediation require separating couples to meet with separate lawyers from the start, which means they provide separate instructions which can lead to often different advice from each lawyer, with ENE the couple are hearing the same evaluation, directly from the evaluator. The process can be used to resolve all of the issues, or only some of those issues.  It is often a means of reducing conflict between the separating couple. ENE can also take away the responsibility of having to make a decision as to how the separating couple’s assets should be divided, as the evaluation as to how that is to occur is coming from an independent third party.

What does early neutral evaluation cost?

The cost of the ENE process depends on the nature and the complexity of the issues involved. Generally, the majority of those issues will be the subject of evaluation during the separating couple’s initial consultation with the evaluator, based on information provided in advance of that session.  The evaluator will explain the evaluation of the issues in dispute at the conclusion of the session, and later prepare a formal report containing the evaluation.  If issues are not resolved during this consultation, requiring further evaluation, the evaluator will provide an outline of what further information may need to be gathered to make a complete evaluation, the time involved in doing so and the associated costs.  Complex matters may require:
  • further consultations
  • further enquiries of any related third parties
  • possible valuations of relevant assets
  • preparing the formal evaluation.
The separating couple can also elect whether they agree for the evaluator to draft the relevant settlement documents to formalise the evaluation, such documents being capable to being taken to separate lawyers for independent advice.  The costs of ENE are usually shared by the separating couple.  

Family law process

What does family law cover?

Most family law is the area of the law dealt with federal legislation called the Family Law Act 1975, which contains the law in relation to:
  • divorce
  • financial matters in relation to the breakdown of marriage and de facto relationships, including financial support
  • parenting orders and child maintenance
The courts that deal with these issues are the Family Court of Australia and the Federal Circuit Court of Australia. Family law also intersects with some State legislation including domestic and family violence. International laws can sometimes be relevant in family law situations, particularly those regarding property, as well as international child abduction. For international child abduction cases Australia has signed an international treaty called the Hague Convention which provides guidance to our Government and Family Courts as to the treatment of those situations. Jones Mitchell Lawyers deals with all these areas of family law.

Do I need a family lawyer?

When children and property involved in a separation or divorce, many people need a family lawyer to help prepare the documents which formalise parenting and property outcomes so as to make them clear, certain in their terms, and enforceable. The guidance of a skilful family lawyer can be invaluable in resolving disputes.  As family law is a discrete area of law, involving specialist skill, those who need a lawyer should choose a lawyer with knowledge of the Family Law Act, and particular experience in family law. You might also seek to select a lawyer who has training and experience in using alternative dispute resolution techniques to resolve family law disputes, as there are  many different approaches that your family lawyer can take to resolve your issues.

How do I choose the right family lawyer for me?

Clients often choose a family lawyer who has been referred to them by a friend or trusted professional. Clients also often choose a family lawyer who they can relate to and trust. More than most other areas of law, there is a ‘relationship’ between clients and their family lawyer, given the particular issues which arise in family law. Jones Mitchell has many family lawyers with different personal and professional experiences. We invite clients to view our lawyers’ profiles and videos and talk through your issues so we can match the best lawyer to your case.

What information does my lawyer need?

Throughout your relationship with your lawyer, you will need to provide relevant information to help resolve your case. For your initial consultation, you will need:
  • notes about your situation to help you provide a clear picture of the situation
  • your list of questions, so you can be sure that all important issues are covered
  • correspondence, if any, you have received from the other side
  • any documents that have been served on you if court proceedings have started
  • any existing orders or agreements in place.

What will we discuss during the initial consultation?

In your initial consultation, you will meet with the family lawyer you have selected, and discuss your case. The lawyer will use the information you provide to give you detailed preliminary advice regarding your specific circumstances.  The initial consultation provides you with any opportunity to ask any specific questions that are important to you. The advice given to you in that meeting covers all areas of family law that apply to you so that you know what will be relevant, as well as what process and outcomes you can expect. We also provide further information about hourly rates and the likely costs you can expect to incur as your family law matter moves forward.

Is my meeting with the lawyer confidential?

Yes. All meetings with your family lawyer are covered by a duty of confidence.  You can be assured that all your discussions with our family lawyers are confidential and will always remain so.

Can my partner and I meet with a lawyer together?

Lawyers meet with clients individually, as in most circumstances we can only act for one partner in a family law situation. However, if you decide to undertake the alternative dispute resolution process called early neutral evaluation, both partners agree to meet with a lawyer together to obtain an evaluation of the case.  In that situation the lawyer is not retained by one party but, rather, by both.

Should I talk to a psychologist or a relationships counsellor?

In family law, conflict is inevitable. "As Gibson Winter once said, "love and conflict are inseparable". A marriage or relationship breakdown can cause significant emotional stress and conflict which can make it difficult to make important life decisions and effectively problem solve. During this time, children are particularly vulnerable and can experience extreme stress if parents are unable to resolve their conflict. Although Jones Mitchell Lawyers manage the legal conflict very well, these emotional conflicts need the skill and expertise of a psychologist or relationships counsellor. If you are feeling stressed about your situation, and have not already seen a psychologist or relationships counsellor, you would certainly benefit from seeking their advice. They can help you:
  • define new ways of dealing with problems that otherwise seem insolvable
  • show you how to communicate more effectively
  • help you recognise and deal with anger and hurt
  • manage the stress of change
  • help you feel better about yourself
  • help you remain objective so you can make the best decisions for you and your children.
Jones Mitchell family lawyers can recommend appropriate psychologists and relationship counsellors.

Going to court

Will I have to go to court?

In most cases, clients are able to resolve their differences out of court. During your initial consultation with your family lawyer, your situation will be explored in depth, and different approaches will be explained to you, so you can decide which ‘pathway’ is right for you.

What if court is my only option?

Sometimes, when separating couples cannot agree, and all other dispute resolution options like mediation and arbitration have been exhausted or the relevant circumstances in your case are particularly urgent, going to court can be the way to see your case resolved.  If litigation is identified by you and us as your only option, Jones Mitchell family lawyers' litigation experience will match any firm in Australia.

What is litigation?

Litigation is the process of resolving disputes through the court system. Family law disputes are resolved in either the Family Court of Australia or the Federal Circuit Court of Australia. For more information about Jones Mitchell’s litigation services, please see litigation.

International disputes

What is the Hague Convention?

The Hague Convention is a treaty signed by many countries, including Australia, to ensure that parenting orders made by one country are enforced in another country.  If a foreign order is breached in Australia, the Family Court is obliged to return children to their country of origin, except in defined, exceptional circumstances.  If an Australian order is breached in a foreign country which is a signatory to the Hague Convention, that country will act in the same way. Some countries are ‘non-convention’ countries (that is, have not signed the Convention), and it can be difficult to locate and have children returned from these countries.

What happens if we have assets overseas?

If you are separating and have assets overseas, this can add complexity to your case.  The law of other countries may be applicable.  You will need to seek the advice of a family lawyer who is experienced in resolving family law situations involving overseas assets.

What if I want to move interstate or overseas?

After separation, you alone can move wherever you want to. You cannot, however, relocate your children without the other parent’s consent or with a court order. If you would like to relocate your children interstate or overseas, each case is decided on its own particular facts. Relevant factors in achieving an outcome which is in the best interests of children can include the pre and post separation parenting arrangements, family support available in each location, work prospects, the dynamic of new relationships, and health issues being faced by either parent. These cases are complex, and often finely balanced, and therefore require advice from an experienced family lawyer.

Legal costs

How much does a family lawyer cost?

Family law fees usually relate to the experience and expertise of the family lawyer. With some of the most experienced family lawyers in Queensland, Jones Mitchell Lawyers’ fees range from $300 to $600 per hour (plus GST). Jones Mitchell Lawyers invoice clients based on the time they spend on your case, in accordance with a contract for the provision of legal services called a retainer agreement.  Because each case is unique, the likely costs in a particular case will also vary.  We treat each client individually, and ensure that the issue of legal costs is discussed openly and clearly at the initial consultation.

How much will the initial consultation cost?

An initial consultation with one of Jones Mitchell Lawyers’ family lawyers costs $300 per hour (plus GST).  An initial consultation with senior partner Warwick (Rick) Jones costs $600 per hour (plus GST), and partner Dan Bottrell costs $500 per hour (plus GST). The first hour is payable at the time of your appointment by either cash, credit card or EFTPOS. We allocate one hour for the initial consultation to hear about your case, to provide preliminary advice as to those issues, and to assemble your family law matter into some options as to its future treatment and management.  If you need more time, we can arrange for a longer initial consultation and invoice you for the additional time, or arrange a further appointment at another time.

Mediation

What is mediation?

Mediation is a form of alternative dispute resolution, which is an option to resolve the parenting and financial disputes of separating couples without going to court.  Couples consent to participate in mediation to ‘problem-solve’ issues in contention, with the help of the mediator, a neutral professional who has specific experience in family law. The objective is to define the issues in dispute, and calling on the assistance of the mediator, examine possible outcomes. The mediator does not judge, or provide advice, but helps both parties examine disputed issues, develop options to address those issues, and consider settlement proposals, all with the objective of resolving the dispute. For more information on Jones Mitchell’s mediation services, please see mediation.

How does mediation work?

In mediation, parties meet together with a neutral, independent and objective mediator, who is trained in guiding separated couples in resolving problems.  The mediator guides the mediation process, and various solutions are explored so that a durable outcome can be reached. The mediator may offer suggestions and help both parties develop options to resolve the issues, but whether or not to entertain settlement proposals, or to commit to a final outcome, is up to the parties involved.

What are the advantages of mediation?

Mediation advantages include the following:
  • Mediation is a private way to resolve issues.
  • Mediation is a faster, cheaper, and less acrimonious way of resolving disputes than litigation.
  • You retain the responsibility for decision-making, rather than giving it to a third party.  This promotes better decisions because those who are most affected, and who know the issues, are the ones making the decision.
  • The mediation process is relatively informal and therefore less confronting than going to court.
  • Both parties often feel as though they have achieved an acceptable result as a result of having been involved in the mediation process.
  • Disputes resolved through mediation will often survive longer and be more effective than decisions based on coercion.  You often have a greater psychological commitment to decisions in which you have had input.
  • Where children are involved, mediation can be used to achieve an outcome without indirectly exposing the children to litigation.

What does mediation cost?

Mediation is often less costly, both emotionally and financially, than litigation.  Mediators in private practice usually charge by the hour and fees are typically shared by both parties. You will also need to pay separately if you wish your own lawyer to attend during mediation, and for the advice you receive in preparation for the mediation. There are other mediation avenues available, and your lawyer can advise you on these.

What types of disputes can be resolved using mediation?

Mediation can be used to resolve all family law situations, including property and financial disputes, and cases where children are involved.

Can mediation help us get back together?

No. Mediation is not marriage counselling.  You and your former partner should seek marriage counselling if either one of you have any doubts about separation.  Your family lawyer will be able to make a referral to a counsellor.  While feelings about the relationship and the decision to separate may be discussed, the focus of mediation is to reach agreements in relation to dispute issues.

Do we both have to take part in mediation?

Usually, parties’ approach mediation consensually, but it can also be ordered by the court as part of litigation.  Because the success of mediation in resolving disputes turns on the co-operation of both parties, it is necessary for both parties to participate in that process.  This means they should be willing to work together to find solutions, and to be open-minded about problem-solving.

What about the children in mediation?

Separation is a difficult time for everyone, especially children.  It can be very comforting for children to see their parents working together to resolve issues, rather than fighting and competing over them.  Children are not, however, involved in the mediation process, except in very rare circumstances. Before the mediation, your family lawyer will discuss the children's needs and what is in their best interests in relation to disputed issues, which will be a topic of discussion at the mediation.

Do I need a lawyer in mediation?

While some mediators will conduct mediations directly between spouses, the mediator is not able to provide legal advice, and does not represent either party.  Many spouses therefore choose to have their family lawyers present during mediation, to help them understand the law around disputed issues, consider any settlement proposals which are made and to craft their own settlement offers, make informed decisions, write up any final agreement which can be achieved.

Are agreements reached in mediation legally binding?

Agreements made at the conclusion of mediation will usually be written up by the family lawyers, often as a ‘heads of agreement’ which is later converted into a formal, binding document for signing off. The objective is to, within a short period of time, have any agreement reached at mediation made legally binding (whether in the form of a consent order, or a financial agreement), so that the dispute is formally finalised.  Each party should at all times consult their family lawyer about these documents and the procedure in relation to them.  

What if we cannot work it out in mediation?

The mediation process may not resolve all issues, but even partial agreements can still help parties narrow the issues in dispute, and limit the time and expense of going to Court.  Parties can agree, after further steps (such as valuations, and disclosure of information in relation to disputed issues) are completed, to participate in a second phase of mediation in order to resolve any remaining issues. Issues that cannot be resolved completely in mediation can be returned to the Court for resolution.

Parenting arrangements

What is a child care arrangement?

A child care arrangement or parenting arrangement is an agreement outlining the time that a child/children spend with each parent or guardian after separation. An example of a child care arrangement is where the child or children live primarily with one parent and spend time with the other parent (e.g. a few days per week/fortnight). These can be documented in two ways:
  1. a parenting plan – when the arrangement is written and signed by both parties
  2. a parenting order of the Court (including an order made by consent of the parties).
You lawyer can help determine which is best for your situation.

What are parenting orders?

A parenting order is one method of formalising the arrangements for a child or children after separation. Unlike a ‘parenting plan’, a parenting order is made by the court and is therefore binding and enforceable. A parenting order can be made:
  •  by the parents (or legal guardians) submitting a consent order for approval, based on the agreement they have negotiated (whether directly, or by forms of Alternative Dispute Resolution); or
  • by the court after a trial.
Consent orders are just as binding and enforceable as orders made by the court. As circumstances can often change, parenting orders are never permanent. Parenting orders may be changed by a subsequent parenting plan or further parenting orders if the parents agree, or (if change is opposed by one parent) by a court in some circumstances.

What is a child support agreement?

A child support agreement is a ‘contract’ between both parents which formally records “who will pay what” for their children. Child support agreements can replace, or supplement, administrative assessments made by the Child Support Agency. Child support agreements can define payments (whether periodically or in a lump sum), ‘in-kind’ payments such as private health insurance premiums and medical costs, and payments to third parties such as school fees. There are a variety of options as to the form and content of child support agreements, and your family lawyer will be able to assist you tailor an agreement which suits your circumstances.

What is an Independent Children’s Lawyer?

An Independent Children’s Lawyer (ICL) is a lawyer appointed by the court to ensure that the interests of the children in a dispute, are represented.  They are appointed in cases where there are complex problems such as allegations of abuse, intractable parental conflict, issues about the unsuitability of a parent, relocation, cultural issues, a proposal to separate siblings, one or both partners do not have lawyers, or where medical procedures may be required. An ICL does not usually take direct instructions from children, and are not obliged to follow wishes expressed by the children.  They consult widely with professionals involved with the children including psychiatrists, psychologists and counsellors in order to gather evidence as to what is in the best interests of those children, and assist the court by putting this evidence before it, and formulate a view about the arrangements that the court can consider putting in place for those children.  The ICL is a party to the proceedings, and afforded all the rights and responsibilities that entails.

What is a parenting arrangement?

A parenting arrangement is the parents’ agreement outlining the living arrangements for their children, the time and communication that they have with each parent, and outcome in relation to specific parenting issues, after separation.  These can be documented in two ways:
  1. a parenting plan – when the arrangement is written and signed by both parties;
  2. a parenting order, made by a court (including an order made by consent of the parties).
You lawyer can help determine which approach is best for your situation.

Property disputes

What is a financial agreement?

Under the Family Law Act 1975, married or de facto couples can make legally enforceable financial agreements about how, in the event of any later separation, their joint and separate property is to be divided between them, as well as ongoing spousal maintenance and other issues. These agreements can be made before, during or at the end of a relationship. Financial agreements made before a marriage are often called ‘pre-nuptial agreements’. However, they are essentially the same document that is prepared when a couple are separating. Financial agreements enable couples to come to a legally binding agreement without the courts intervening.

When is a financial agreement legally binding?

Generally, for a financial agreement to be binding on the parties:
  • the agreement must be in writing and signed by all parties.
  • the parties must have received legal advice about the specific issues set out in the Family Law Act and the lawyers must have signed statements of legal advice confirming that the advice was given.
  • the statements of legal advice must be exchanged.
  • the agreement must not have been terminated or set aside by a court.
The court can also make a declaration that a financial agreement is binding on the parties if some of the above requirements have not been met. To cancel or change a financial agreement, you must prove:
  • there was a fraud (dishonesty).
  • the agreement is not practical to carry out (not just inconvenient).
  • there is a major change in the children’s care and welfare.
  • the other person acted in an ‘unconscionable’ (unethical or unfair) way.

Same sex relationships

Do family lawyers work with same sex couples?

Yes. Changes were made to the Family Law Act in 2009 to provide most same sex couples access to the Family Court system when they separate provided certain criteria (mostly in relation to when the relationship ended and where the parties lived) are met. Those couples that meet the criteria can apply for both property settlement and spousal maintenance orders either in the Federal Circuit Court or Family Court.

What is the difference between a separation agreement and a cohabitation agreement?

A 'cohabitation' type agreement is a financial agreement covering a future situation or property that may be bought in the future. These are often prepared at the beginning of a new relationship like a ‘pre-nuptial agreement’ and are particularly important for a party who is bringing wealth into a relationship or who is likely to receive a benefit (such as an inheritance) during the relationship. A 'separation' agreement is a financial agreement made when a couple (either married or de facto – including same sex) separate and deals with the division of specific property and financial resources of both partners whether owned in both names or in separate names. Spousal maintenance can also be dealt with in these agreements.

Separation and divorce

When am I legally separated?

The law considers that a couple (married or de facto, including same sex) has separated when one partner has communicated to the other that the relationship has ended or when both partners communicate this at the same time. Often separation involves one partner leaving the family home, but not always. Partners can be separated and still be living under one roof.

When can I get a divorce?

You are able to apply for a divorce 12 months after you have separated. To apply for a divorce, you must complete an application for divorce, file it with the court and pay the application fee. This application can be done individually or as a joint application. To apply for a divorce in Australia, you or your ex-partner must either:
  • be an Australian citizen
  • live in Australia or regard Australia as your permanent home or
  • normally live in Australia.
For more information, see divorce applications.

How does the legal process work with a separation and divorce?

When separating, there are two main issues you need to address:
  1. divide your property and assets and
  2. make care and financial support arrangements for your children, if you have any.
You can make arrangements to settle these issues as soon as you separate. You do not need to wait until after you are divorced. You can resolve these issues using alternative dispute resolution (such as negotiation, mediation, arbitration and early neutral evaluation). If you cannot agree, you can use litigation to go to court for a judge to make a decision for you. There are many different types of documents that family lawyers develop for you to facilitate your separation such as financial agreements, child support agreements, consent orders and divorce applications.

What is spousal maintenance?

Spousal maintenance is an amount paid by one partner to fund the other partner’s reasonable living expenses. The determination as to whether a partner is liable to pay spousal maintenance to the other, is whether one partner has a genuine need for financial support, and whether the other partner has the capacity to provide that support. Factors that the court consider when deciding if spousal maintenance is required include (but are not limited to) the partner’s age, health, and employment status. Spousal maintenance can be made on an interim or final basis and can be in the form of a lump sum payment or recurrent payments. Spousal maintenance can be for a defined period of time or for an indefinite period depending on the individual circumstances of the case. Spousal maintenance can be payable as between marriage couples, de facto couples, or same-sex partners.

Are de facto couples treated the same as a married couple?

Yes. When it comes to the law, de facto relationships (same sex or otherwise) and marriages are viewed equally. Both de facto relationships and married couples have the same legal rights and entitlements pursuant to the Family Law Act 1975. There is only one major difference in the law regarding married and de facto couples. When separating property, married couples have 12 months from the date of their divorce to apply to the court for property orders. De facto couples have 24 months from the date of their separation.  If parties do not comply with their statutory time limits they are required to seek the court’s permission to apply out of time. This is not always granted.