When you suddenly need to engage with or use the family law system in Australia, you might be scratching your head wondering ‘how does the family law system work?’
You may find yourself getting overwhelmed and bogged down with terminology and procedures.
This is usually in addition to any of the personal changes you might be going through, like divorce or separation.
So, it’s not easy.
But, it doesn’t need to be hard either.
In this article, we’re going to focus on separation and divorce and highlight the steps you need to be aware of before and during court, as well as dispel any myths you might believe about the family court system.
Busting family law system myths
We’ve created a list of commonly held beliefs about the family law system that are either partially or entirely false.
- We can’t be separated if we still live together: you can separate and live under the same roof. It is the nature of the relationship while under the same roof that determines if you’re separated or not. Read more about it here.
- Going to court is the way to get the best outcome out of my separation: technically, attending court to finalise a divorce is the last resort. Sometimes the parties involved can agree to an arrangement between themselves, sometimes they will hire lawyers, but in most cases, court is the final option to sort out a divorce.
- The asset pool gets split 50/50 between parties during a divorce: a 50/50 asset pool split is pretty rare. Different factors like the financial and non-financial contributions made in the relationship and the length of the relationship determine how assets are split. Under Australia’s no-fault system, infidelity does not affect the distribution of assets.
- My ex can’t get my super: superannuation makes up part of the asset pool, and your ex may be entitled to a part of it – learn more here.
- Kids can choose which parent they want to live with: this is considered a burden for a child. The court will order a custody arrangement that is in the best interest of the child, and while best interest may coincide with what a child says they want, it might not necessarily.
If you’ve reached a point where your relationship has broken down and cannot be repaired, it may be time to separate.
Separation is when you and your partner stop living together in a domestic or marriage-like relationship. One or both of you may want to separate – you don’t need to both agree to end the relationship.
The date of separation, and when you stop living together, are important dates in family law that you will need to know for your property settlement and divorce (if you were married).
There are no forms to complete when separating – to legally separate from your partner you only need to make the decision to separate and tell your partner.
If you are separating, whether you were married or in a de facto relationship, you will usually need to start making decisions about arrangements for children and dividing finances.
Here are the steps you need to take for a separation:
- Keep a record of the date of your separation (this is important to be able to divorce later)
- Try to store some evidence of your separation – this might be in the form of a text message
- Sort out your finances by moving your belongings somewhere safe and having funds available in your own account
- Consider moving out of the shared home, provided you can afford to do so
- Change your legal documents and policies such as superannuation and insurance
- Consider hiring a lawyer to help with divorce proceedings
- Start preparing for divorce proceedings
What do I do after I separate from my spouse?
After separating from your spouse, there are three things that you will need to consider:
- What will happen to the children of the relationship?
- What will happen to the assets/money/debts from the relationship?
- Do I need to get a divorce?
We break down what you need to consider for each question below.
What will happen to the children of the relationship?
If you have children from your relationship, you will need to establish what the parenting arrangement for the children is going to be.
Parents often are able to come to an agreement about how they are going to parent their children and how much time each parent will spend with the children.
If parents are unable to come to an agreement about how much time each parent should spend with the children, then they should engage a family lawyer or a mediator to assist with the process.
A family lawyer or mediator will help you negotiate an agreement with the other party, and provide an independent and unbiased approach towards finalisng a parenting agreement.
If you are still unable to negotiate an agreement, you will need to take the matter to court.
Taking a matter to court means a judge will make a decision about the parenting arrangements for the children.
Read below about taking a matter to court.
What will happen to the assets of the relationship?
You will also want to know what happens to the assets of the relationship.
Couples are often able to come to an agreement as to how they will split the assets of a relationship.
Again, if you are unable to come to an agreement about how you will split the assets of the relationship, then you should engage a family lawyer or a mediator to assist with the process.
A family lawyer or mediator will help you negotiate an agreement with the other party, and provide an independent and unbiased approach.
There are time limits when dealing with property from a relationship.
If you were married, you need to file an application in the Family Court within 12 months of the date your divorce becomes final.
If you were in a de facto relationship, you need to file an application in the Family Court within 2 years of the date of separation.
Once the time limit has expired you have to seek leave from the Court and leave is not always granted.
Going to Family Court
You will need to take your matter to the Family Court if you are unable to reach an agreement about either the property and/or the parenting aspect of your relationship.
In order to take the matter to Family court, you’ll have to prepare your initiating documents.
Normally a solicitor assists with this as these are very important documents that will determine the outcome of your case.
The Initiating application will determine what orders you are seeking both in the short term (interim orders) and long term (final orders).
The documents you will need to file should include:
- Initiating application – this has details about the case and details about what orders you are requesting the court to make
- Affidavit – this is a statement that explains the history of the matter and provides the evidence for your case. You can attach documents to your affidavit so that the court is aware of this evidence.
- Notice of Abuse, Violence, or Risk – this is only for a parenting application. It outlines whether you have any concerns of abuse or risk to any of the parties involved.
- Evidence from different individuals and/or institutions gathered by way of subpoenas or further Affidavits
- Financial statement – this details your financial situation. This is only relevant for financial applications.
You’ll have to enter your application into the commonwealth courts portal, along with the evidence and supporting documents the court requests. After serving the applications to your former partner, the court will allocate you a first court event.
Please note – if your ex partner serves you an initiation application, you will need to respond – your response should include the same items listed above for initiation applications.
Before attending court
Not all matters have to go through the courts.
In fact, our firm has an out of court settlement rate of 89%.
That means less legal fees for our clients, and a faster outcome.
Before going to court, you should try and resolve your matter by doing the following:
- Negotiating directly with the other party
- Speaking to a family lawyer to negotiate with the other party
- Attend a mediation
- Send final offers to resolve the matter
These amicable agreements can be agreements on interim matters (like child care arrangements) or final parenting orders (permanent child arrangements moving forward).
Please note, these steps may not always be appropriate or safe for involved parties, especially in the case of domestic violence.
Family law mediation
The next step the family law system stipulates you can take in order to resolve your case outside of the courts is through family law mediation.
Family law mediation is a dispute resolution approach where the involved pirates discuss their differences in the presence of a third party or mediator.
This method is a cheaper way of settling disputes and preparing parenting plans if there are children involved.
After attempting family law mediation you will be issued with a certificate that shows you attended and attempted to mediate, allowing you to file an initiating application in court. This certificate is often referred to as a Section 60I certificate.
Interim hearings are court events where urgent matters can be sorted out by the courts while the other matters are ongoing – these are especially important if there are children involved or in situations of domestic abuse.
Interim hearings are short court hearings that take place before the final hearing in court proceedings to determine urgent matters until the final court orders are made.
Interim hearings are usually heard in matters including:
Interim hearings are court proceedings that do not include any witness examination. The judge assesses the documents provided by the parties involved, and listens to the submissions made by the parties, then makes a judgement – which is called an Interim order.
Most cases resolve before reaching a final hearing, but final hearings are still there to help you finalise your family law matters.
Final hearings are conducted by judges.
In these hearings, evidence is provided and examined, and the parties involved, such as yourself, your former partner, witnesses and experts are cross-examined and questioned.
Once the hearings are completed, the session will be adjourned, as it is often unlikely that the judge will declare final orders on the day of the final hearing.
Final hearings are the last step of the family law system and should be avoided if there is an opportunity to negotiate and finalise the matter earlier.
Mistakes and traps to avoid
To ensure your experience with the family law system goes as smoothly as possible and gives you the desired outcome, avoid these common mistakes after your separation:
- Not keeping a record post-separation: once you’re separated, it’s important to keep a record of what’s going on – spending, living arrangements whether with or without a child, and any communication between you and your ex.
- Thinking domestic violence can only be physical: we’ve written this blog to help people identify if they’re in an abusive relationship. If you’re a victim of abuse, you should disclose this to your lawyer as it can help you with your divorce outcome. It will also help your lawyer and the court protect you from an abusive ex partner.
- Not seeking legal advice: it’s true that you can get through a divorce without a lawyer, but consulting with a legal expert will help you determine if you’re getting a good deal or not.
- Settling too quickly to end the marriage: it’s important that you reach a good divorce outcome, so that you can support yourself financially and mentally once the divorce is finalised. Settling for less than you deserve to get out quickly can be something you’ll regret in the future.
Not hiring a family lawyer to support you can also be a mistake, especially if your case is complicated or challenging. If you’re looking for expert advice one divorce or are looking for a good lawyer to support you through one, contact us here for a confidential consultation.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.