Divorce & Separation

Two people clutching hands together to
negotiate a deal

When and how to get divorced, and separate from your partner?

Getting divorced is a stressful process that can bring many mixed emotions such as fear, worry, relief and release. When the divorce involves children, it can be additionally stressful. Below are some general answers to the more common divorce & separation questions.

Book a consult

How do I get a divorce?

Australia has no-fault divorce legislation, so either party can make the application for divorce, with no requirement to show the Court that either party has breached the marriage contract. To divorce in Australia, your marriage must have irretrievably broken down.

Am I Eligible for a Divorce?

To prove that your marriage has irretrievably broken down, you must show the Court that you have been separated from your spouse for at least 12 months, prior to making your application for divorce.

To apply for divorce in Western Australia, either spouse making the application must:

be an Australian citizen at the time of making the application,
ordinarily domiciled in Australia,
be a resident of Australia, for at least 1 year before the date of making the application.

Do I need to get Divorced to Separate property and/or get parenting orders?

No. There is no need to be divorced, or to make an application for divorce, if you want to separate your property or make parenting orders for children.

Can I still live with my Spouse, during separation?

You can continue to live in the same house during the 12 month separation period, but it may be harder to prove to the Court that you are no longer living as a domestic couple. Evidence that you are no longer sharing a bedroom, or that you have separated your finances for example, would be useful to substantiate your separation

Separation & De Facto Relationships

Australian law treats couples that are living in a de facto relationship in a similar way to married couples. The time limit for de facto partners seeking orders for custody, maintenance and property orders is within 2 years of separating, or else the applicant must seek leave from the Court for more time.

What is a De Facto Relationship?

A de facto relationship is where 2 people (of the same or different sex) who are not legally married and are not related by family, are living together in a genuine domestic basis. They can seek relief in the Family Court. At the present time, West Australian de facto partners are not able to split superannuation interests, unlike married couples.

Am I in a De Facto Relationship?

The Family Court recognises de facto relationships, even if one of the people in the relationship is legally married to someone else.

While the presence of one of these indicators is not enough to determine if somebody is in a de facto relationship, the Court will look at each factor listed in s 13A of the Interpretation Act (1984) WA when deciding whether the parties have been in a de facto relationship:

(a) the length of the relationship between them;

(b) whether the 2 persons have resided together;

(d) whether there is, or has been, a sexual relationship between them;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(f) the ownership, use and acquisition of their property (including property they own individually);

(g) the degree of mutual commitment by them to a shared life;

(h) whether they care for and support children;

(i) the reputation, and public aspects, of the relationship between them.

Am I entitled to a Property Settlement?

If you have been in a de facto relationship for at least 2 years, or

One party made a substantial contribution, or

You have children together under the age of 18 years, and not getting a property settlement would result in serious injustice.

These factors are likely to make you eligible for an application to alter property interests at the Family Court, but proper, specific legal advice is required in order to determine the likely asset split.

Same Sex Relationships

The rules as to division of property, parenting & divorce (if the parties were married) are the same for different sex relationships whether married or de facto.

Speak to Mossensons today to find out if you are eligible for a divorce.

What is Spousal Maintenance?

Financial payments, either one off or a recurring amount, made to an ex partner. Spousal maintenance is a one-off or recurring payment, made by agreement between the parties where one party provides financial support to the other. The payment is intended to provide financial support to an ex partner after the relationship ends. Parties that have been married, and those that were in a de facto relationship are eligible.

Spousal maintenance forms part of an obligation that exists between partners to a relationship, as part of a duty to support one another. This duty can continue beyond even the separation of the parties.

How Does a Court Decide Whether to Grant it?

A Court will only grant spousal maintenance if

one party has a real need, and cannot adequately support themselves because of age, incapacity or inability to work because they are taking care of children, and
the other party has the capacity to provide financial support to the other party, and
it is fair to grant an order for the payment of spousal maintenance in the circumstances.

When is it granted?

Spousal maintenance is usually only granted in circumstances where:

One party cannot adequately support themselves (because of age, incapacity or they cannot work as they are looking after children),
The other party has the capacity to support the other financially,
It would be proper in all circumstances that the other party provide the support.

Can the payment be paid out of a property settlement?

Spousal maintenance can be paid out of a property settlement, as a lump sum payment made to one party which is not child support. Spousal maintenance differs from child support, as it provides for the upkeep of the former partner, not for the child. Child support differs from spousal maintenance, because it is assessed and enforced through a separate agency (CSA Australia) and does not require Orders being made through family court.

When Can I Apply for Spousal Maintenance?

You can apply as soon as you are separated. If you were married, you do not need to wait for your divorce to be finalised in order to apply. If you were in a de facto relationship, then you can apply as soon the day after you separated from your former partner.

Are there Time Limits?

If you were married, you must apply within 12 months of getting divorced or having your marriage annulled. If you were in a de facto relationship, you must apply within 2 years of the date of the relationship ending. You will need the Court’s permission to make an application outside of these time limits.

How Do I Apply for Spousal Maintenance?

Mossensons can assist you in making an application for financial hardship to the Court, which is the first step. The next step is to file your application with the Family Court. As spousal maintenance is a financial order, it requires you to follow the process involved in making a financial order.

After you have fulfilled the pre-action procedures, you will need to file:

A form 1, telling the Court what you are requesting;
A form 13, setting out your financial position; and
An affidavit in support of your application.

Do I have to pay?

Mossensons can assist you with advice in defending claims made against you for spousal maintenance. You can rely on Mossensons’ expertise and extensive experience in family law matters, to advise you in how to negotiate or defend an application for spousal maintenance made against you.