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When it comes to family law issues, it seems that almost
everyone has a personal anecdote or piece of advice to share. While
given with good intentions, this information can often lead to
misconceptions about family law generally, a person’s
entitlements, the costs and the process.
Time and time again, family lawyers are asked to clarify
misconceptions which may have come from others with past
experience, non-family law professionals, or even the latest legal
Attempting to negotiate or proceed through the separation
process on the basis of these misconceptions can lead to unfair or
inappropriate outcomes, or result in steps being taken early which
may be detrimental to achieving the ultimate goal.
To avoid this, and assist parties and professional advisers
involved at the start of the separation process get on the right
track, this article clarifies some of the most common of these
Can I “legally separate”
There is no process to “legally separate” from a
partner in Australia, and it does not necessarily require one party
to move out of a shared home. There are sometimes circumstances
where parties remain living separately under the one roof.
The criteria required to determine when parties separate is that
one party communicates their intention to separate to the other,
and then acts on that intention. Sometimes disputes can arise about
the date of separation, and parties can have very different views
about it. It is therefore important to note the details in case of
a dispute later.
“Getting a divorce” means finalising property and
A divorce does not deal with property settlement or parenting
issues. A divorce is a standalone application to the court to
legally terminate a marriage. Other than in exceptional
circumstances, parties can only apply for a divorce after being
separated for 12 months.
Dealing with parenting and property matters are very separate
processes, and do not necessarily require an application to the
court. These issues can be dealt with at any time either prior to
or after a divorce – although an application to the court in
relation to financial matters must be made within 12 months from
the date a divorce is granted.
A new partner can make a property claim
De facto couples have almost identical property rights to
married couples under Australian family law legislation. However,
this is not automatic and there is certain criteria which must be
met before a de facto partner is able to apply for property
- Firstly, the parties must be in a de facto relationship, as
defined in the Family Law Act 1975, being that
“they have a relationship as a couple living together on a
genuine domestic basis.” The assessment of the existence
of a de facto relationship involves taking into account a myriad of
factors about the relationship;
- The parties must have been in a de facto relationship (not
simply dating) for a period of at least 2 years; OR
- If there is a child of the de facto relationship; OR
- One of the parties to the de facto relationship has made
substantial contributions and denying a claim would result in
serious injustice to that party;
- The relevant geographical requirements are satisfied.
Property settlements are automatically “50/50” or
“Whoever has the kids will get more”
There is no pre-determined percentage division of assets in
Each situation is different and is determined according to
numerous factors set out in the Family Law Act 1975,
- the asset pool to be divided, including the value and nature of
the assets involved;
- the financial and non-financial contributions (including as
homemaker and parent) made by each of the parties;
- the length of the marriage, the ages and arrangements for any
children, the age, state of health and income earning capacity of
each party, among other things.
Assets held before a relationship or inheritances are excluded
from any claim
All assets held at the time that an agreement is reached or a
court determines a property settlement are included in the asset
pool available for division. This can be even if this occurs many
years after separation.
If one party held assets before the relationship or received an
inheritance, these assets will be included in the asset pool, and
considered as a contribution by that party, potentially resulting
them receiving a greater percentage, depending on the value of what
was brought in/inherited and the length of time passed since.
Assets held in a company or trust are protected from a property
Assets held in a company or trust are not protected from a
property settlement claim. If a party has control of a company or
trust, and holds an interest as a shareholder or beneficiary, then
those assets will be included as part of the asset pool in a
Where third parties are involved, this becomes a little more
complicated and structure and roles in the company/trust will need
to be closely looked at to determine where these assets fit into a
property settlement. It may be that the assets held by a
company/trust will be considered as a “financial
resource” to one of the parties, which will still impact the
manner in which the assets are divided.
A party will be financially penalised because of bad behaviour
during a relationship
Australia has a no-fault family law system. Immoral or
inappropriate behaviour during (or after) separation will be
irrelevant when property settlement matters are determined.
There are only exceptional circumstances where such behaviour
may be relevant, including where one party has been financially
reckless or wasteful (involving more than just excessive lifestyle
expenditure), or where there has been family violence to the extent
that one party has suffered so much as a result, that it
significantly impacted their ability to contribute to the marriage.
This is a very high threshold and not easily met.
“Pre-nups” are worthless
“Pre-nups” or financial agreements, as they are
referred to in Australia, are a very important tool in assisting
parties to pre-determine the division of their assets in the event
of separation. This is particularly so in second and later
relationships where parties have accumulated their own wealth and
often have children to previous relationships.
There are very strict requirements for a financial agreement to
be valid and binding, and when prepared by an experienced family
lawyer in accordance with those requirements, are often upheld when
The financial agreements which are ultimately set aside by a
court are often prepared by lawyers not experienced in family law,
where the strict requirements have not been complied with, or where
there are indications of duress or unconscionable conduct at the
time the agreement is prepared and signed.
Children can decide where they want to live when they are
There is no fixed age at which a child is able to decide where
they want to live, and whether or not they want to see one parent
or the other.
The court is able to make orders about the arrangements it
considers are in a child’s best interests until they are 18,
taking into account all the circumstances.
A child’s view is one of the factors to be taken into
account, and given weight according to the child’s maturity and
level of understanding, balanced with the other relevant
A child’s views are generally conveyed to the court by an
independent expert such as a family consultant or independent
children’s lawyer, if appropriate. Children are not directly
involved in court proceedings and cannot give evidence.
Practically speaking, however, the court recognises older
children are less likely to cooperate with orders they do not want,
and takes this into account when making decisions.
Getting a lawyer means going to court
Lawyers have a professional obligation to exhaust all
opportunities for resolution before issuing a court
While the preferred situation is to be able to resolve disputes
without court, there may be reasons where a court application is
the most cost-effective and efficient option to deal with either
urgent issues or non-cooperation by the other party in trying to
negotiate a resolution.
Engaging in a process where court is not an available option can
sometimes result in a situation where the less empowered or
informed person is disadvantaged.
Originally published Feb 16, 2022
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.