When couples who once loved each other deeply get married or live together in a de facto relationship but later decide to separate, emotional pain often follows.
The moment separation begins, several important issues must be considered:
1. Children:
If the separating couple has children, they must decide who will take care of the children and how the non-residential parent will have access (visitation rights). If they cannot agree, the court may issue orders. Under Australian family law, both parents have equal shared parental responsibility.
2. Child Support:
The parent not living with the child must pay child support to the primary caregiver, usually calculated by Services Australia based on both parents’ income, number of children, and their ages.
3. Property Settlements:
If both parties agree, they can divide the property via a financial agreement. If not, the court decides based on financial and non-financial contributions, parenting responsibilities, and each party’s earning capacity. Assets include real estate (in Australia or overseas), superannuation, shares, and vehicles.
4. Spousal Maintenance:
In rare cases, a financially stable spouse may be required to support the other spouse after separation.
Special Case: Separation Under One Roof
If couples cannot afford separate housing, they may still be legally separated under one roof, provided there is clear evidence. Legal advice is recommended in such cases.
Requirement for Divorce Application:
A minimum separation period of 12 months is mandatory before filing for divorce in an Australian family court.
If You Need Help Upon Separation:
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Immediate Financial Assistance: Contact Services Australia through MyGov and Centrelink for social welfare support.
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Special Benefit: If not eligible for other support, individuals with disability or elderly can apply for this emergency benefit.
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Accommodation Support: Contact your state government for housing help.
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Women’s Refuge: Victims of domestic violence can seek emergency shelter and protection.
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Charity Support: Organizations like The Salvation Army or St Vincent de Paul provide food, clothing, and limited financial help.
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Child/Spousal Support: If the other parent does not pay child support, the government may intervene.
Divorce in Australia
You can apply for divorce if:
(1) You’ve been separated for at least 12 months, and
(2) The marriage has broken down irretrievably.
No-fault divorce: The court does not consider who was at fault. Consent of the other party is not necessary, but the application must be served to them.
How to Prove Irretrievable Breakdown:
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No sexual relationship
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Publicly living separate lives
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Separate financial management
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Transfer or surrender of parental duties
Property Division upon Divorce
Key principles:
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A “just and equitable” division is required.
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All assets and liabilities must be disclosed.
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Calculate each party’s financial contributions.
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Consider non-financial contributions (e.g., childcare, homemaking).
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Consider negative contributions (e.g., gambling, abuse).
Even if one partner contributed more financially, non-financial contributions are considered equal. Hence, 50:50 division is common, unless:
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A prenuptial agreement exists,
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Assets were held in a trust before marriage,
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The marriage was short with separate finances.
Important Notes:
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Property settlement is separate from divorce.
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It must be filed within 12 months after the divorce order.
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Assets in one party’s name may still be considered joint marital property.
Disclaimer: This document is for general guidance only. Individual cases may differ significantly. No legal responsibility is accepted for the information provided.
