Family Law

In Australia, you can generally apply for a divorce if your marriage has broken down and there is no reasonable likelihood that you and your spouse will reconcile. You must usually have been separated for at least 12 months before applying for a divorce.

Separation does not necessarily mean that you and your spouse must live in separate homes. Some couples remain living under the same roof after separating for financial, practical, cultural or other reasons. If you have separated but continue to live together, you will generally need to provide additional evidence to the Court explaining your circumstances.

If you have children under 18, the Court must also be satisfied that appropriate arrangements have been made for their care and wellbeing.

Australia has a no-fault divorce system, which means you do not need to prove that your spouse was responsible for the breakdown of the marriage.

Read more: What Should You Consider When Applying for a Divorce?

To apply for a divorce in Australia, you need to make an application to the Federal Circuit and Family Court of Australia. You can apply jointly with your spouse or, in some circumstances, make a sole application.

Before applying, you generally need to have been separated for at least 12 months and there must be no reasonable likelihood that you will reconcile. If you have children under 18, the Court will also need to be satisfied that appropriate arrangements are in place for their care and wellbeing.

If you and your spouse have been separated but continue to live under the same roof, you can still apply for a divorce. However, you will generally need to provide an affidavit explaining the circumstances of your separation, together with an affidavit from another person who can confirm the separation.

The divorce application is filed with the relevant supporting documents. If the application is not contested, the Court may grant the divorce without a hearing. Once the divorce order is made, it generally becomes final one month and one day later.

Read more: Separated Under One Roof – How Do I Apply for Divorce?

No. There is no automatic rule in Australian family law that assets must be divided equally, or that one person is entitled to 60% and the other 40%. Every property settlement is determined according to the particular circumstances of the relationship.

When determining how property should be divided, the Court considers the parties’ assets, liabilities and financial resources, as well as their financial and non-financial contributions. Contributions can include income and other financial contributions, as well as caring for children, being a homemaker and contributing to the maintenance or improvement of property.

The Court will also consider the parties’ current and future needs, including factors such as their age, earning capacity, superannuation and responsibility for caring for children.

The aim is to determine whether the proposed division of property is just and equitable in the circumstances. This means that the outcome cannot reliably be predicted simply by assuming that the assets will be divided equally.

Read more: Family Law Property Settlements – Debunking the Myth of the 50/50 Split

Spousal maintenance is financial support paid by one spouse or de facto partner to the other after separation or divorce. It may be relevant where one person is unable to adequately support themselves and the other person has the financial capacity to provide support.

Spousal maintenance is not automatically payable simply because a relationship has ended. The circumstances of each relationship need to be considered, including each person’s income, financial resources, earning capacity, age, health and responsibility for caring for children.

The amount and duration of any spousal maintenance will depend on the individual circumstances. In some cases, the parties may reach an agreement about payments. If an agreement cannot be reached, an application can be made to the Court.

Spousal maintenance is separate from child support, which concerns the financial support of children.

Because spousal maintenance can have significant financial consequences, it is important to obtain legal advice about your individual circumstances before entering into an agreement or making an application.

Read more: Spousal Maintenance – What You Need to Know

A Child Support Agreement is a formal agreement between parents about the financial support of their children. It can set out how much child support will be paid, how it will be paid and, depending on the type of agreement, how particular expenses such as school fees, medical costs or other child-related expenses will be shared.

There are two main types of private child support agreements in Australia: Limited Child Support Agreements and Binding Child Support Agreements. They have different requirements and provide different levels of flexibility and certainty.

A Binding Child Support Agreement can, for example, allow parents to agree to a particular amount of child support even where that amount differs from the usual administrative assessment. Both parties must receive independent legal advice before entering into a Binding Child Support Agreement.

Child support arrangements can be complex, particularly where parents have different incomes, care arrangements or significant additional expenses for their children. Obtaining legal advice can help ensure that an agreement properly reflects the circumstances of both parents and the needs of the children.

Read more: Child Support Agreements – What You Need to Know

Money provided by parents or other family members can be treated as either a gift or a loan in a family law property settlement, depending on the circumstances and the evidence available.

The distinction can be important because a genuine loan may be treated as a liability of the relationship, whereas a gift will generally be considered differently when determining the parties’ financial contributions.

The Court may consider factors such as whether there was a written loan agreement, whether there was an expectation that the money would be repaid, whether interest was payable, whether repayments have been made and how the arrangement was treated by the parties over time.

Simply describing a payment as a “loan” after separation does not necessarily make it a loan for family law purposes. Similarly, the absence of a formal written agreement does not necessarily mean that money was a gift. The surrounding circumstances and available evidence will be important.

If family members are providing significant financial assistance to a couple, it is sensible to document the arrangement clearly at the time the money is provided.

Read more: Gift or Loan? What Happens to Money Given by Family When a Relationship Breaks Down?

A Binding Financial Agreement (BFA) is a legally significant agreement that can determine how property, financial resources and other assets are dealt with if a relationship ends. It is not simply a standard contract that can be downloaded, completed and signed.

Australian family law sets out specific requirements for a BFA to be legally binding. Importantly, each party must generally receive independent legal advice about the effect of the agreement, its advantages and disadvantages, and the circumstances in which it may be appropriate to enter into it.

A BFA also needs to be carefully drafted to reflect the particular circumstances and intentions of the parties. Issues such as property, superannuation, existing assets, future assets, inheritances and financial contributions may need to be considered.

Using a template or attempting to prepare a BFA without appropriate legal advice can create uncertainty about whether the agreement will be effective or enforceable. A poorly drafted agreement may also fail to properly address the issues the parties intended to protect.

For these reasons, obtaining independent legal advice from a family lawyer is an important part of entering into a BFA.

Read more: Why Binding Financial Agreements Aren’t a DIY Job

If one party has deliberately or recklessly wasted relationship assets, that expenditure may be taken into account when determining a property settlement. However, there is no automatic rule that the person responsible for the expenditure must simply repay the money to the other party.

The circumstances surrounding the expenditure will be important. The Court may consider whether assets were deliberately or recklessly dissipated, the amount involved, when the expenditure occurred and the effect it had on the parties’ financial position.

Examples can include significant spending on gambling, excessive alcohol or drug use, or deliberately disposing of assets for no reasonable benefit to the relationship. However, ordinary living expenses, reasonable expenditure or financial losses that occurred as part of normal circumstances will not necessarily be treated as “wastage”.

If significant assets have been lost or spent before a property settlement, it is important to obtain legal advice about how that expenditure may be treated. The question is not simply who spent the money, but whether the circumstances justify taking that expenditure into account when determining a just and equitable property settlement.

Read more: Waste of Assets in a Property Settlement – Who Pays?

The division of assets when a couple separates or divorces later in life is determined according to the particular circumstances of the relationship. There is no automatic 50/50 division simply because the parties have been together for many years or are approaching retirement.

The Court considers the parties’ financial and non-financial contributions, including contributions made throughout a long-term relationship. It may also consider their current and future financial needs, particularly where one person has a significantly different income, earning capacity or level of superannuation.

For couples approaching or in retirement, superannuation can be particularly important when determining a property settlement. Other considerations may include the family home, investment properties, businesses, savings, inheritances and other financial resources.

The age and health of each party, their ability to continue working, their expected retirement needs and their capacity to rebuild their financial position may also be relevant.

A property settlement later in life therefore requires careful consideration of both the assets accumulated during the relationship and the financial circumstances each person will face after separation.

Read more: Divorce Later in Life – What Happens to Your Assets?

There is no set period for how long spousal maintenance must be paid after separation. The duration will depend on the circumstances of the parties and the terms of any agreement or Court order.

Spousal maintenance may be paid for a specific period, until a particular event occurs, or on an ongoing basis. For example, payments may be reviewed or end if the recipient becomes financially independent, returns to work, remarries or enters into circumstances that affect their need for support.

The Court considers factors such as each party’s income, financial resources, earning capacity, age, health and responsibility for caring for children when determining whether spousal maintenance should be paid and, if so, the appropriate amount and duration.

Spousal maintenance can also be affected by a property settlement, and the two issues should not always be considered separately. A person’s financial position following a property settlement may affect their need for ongoing support.

If you are paying or receiving spousal maintenance, it is important to understand the terms of the relevant agreement or Court order and how changes in your circumstances may affect your obligations.

Read more: How Long Do I Have to Pay Spousal Maintenance?

When a de facto relationship ends, the parties may have rights and obligations under Australian family law in relation to property, financial resources and, where relevant, spousal maintenance. You do not need to have been married for these laws to apply.

The Court can consider a range of factors when determining a property settlement, including each person’s financial and non-financial contributions, the assets and liabilities of the relationship, and each party’s current and future financial circumstances.

Whether a relationship is legally considered to be de facto can depend on the circumstances. Factors such as the length and nature of the relationship, living arrangements, financial interdependence, ownership and use of property, and the degree of commitment between the parties may be relevant.

There are also time limits that can apply to applications for property adjustment or maintenance following the breakdown of a de facto relationship. In many circumstances, an application must be made within two years of the relationship ending, although exceptions may apply.

If a de facto relationship has ended, obtaining legal advice early can help you understand your rights and ensure that any applicable time limits are not overlooked.

Read more: De Facto Relationships – What Happens When a De Facto Relationship Breaks Down?

If you are concerned about your former partner entering, accessing or dealing with your home after separation, the steps available to you will depend on your circumstances and the nature of the concern.

If the issue relates to property ownership, separating from your partner does not automatically change either person’s legal interest in the home. Even if the property is registered in your sole name, your former partner may potentially have an interest that needs to be considered as part of a property settlement.

If there are concerns about your former partner entering the property, removing belongings, damaging property or otherwise interfering with your home, it is important to obtain legal advice before taking action. Depending on the circumstances, different legal protections or Court orders may be available.

Where there are concerns about family violence or personal safety, protecting yourself and your children should be the priority. Urgent legal assistance may be available, including applications for appropriate protective orders.

It is important not to assume that you can simply exclude your former partner from the home or dispose of their belongings without considering their legal rights. The appropriate steps will depend on the circumstances of your separation, your living arrangements and any existing Court orders or agreements.

Read more: How to Protect Your Home From Your Ex-Partner After Separation