- you and your spouse have been living separately and apart for more than 12 months; and
- your marriage has irretrievably broken down and there is no prospect of reconciliation.
Whenever it suits you.
Property settlement and divorce are 2 mutually separate things, you can have one and not the other, both or none.
You should be aware that you need to resolve your property settlement within
- 12 months of a divorce orders being granted; or
- 2 years after separating when in a de facto relationship
Otherwise you are out of time. If you are close to the time limit you should contact us for some advice.
As detailed above, in most cases you are required to go to FDR or Family Dispute Resolution prior to going to court.
There are exemptions to this, such as
- Family violence;
- A contravention of an order less than 12 months old; or
- You or the other party cannot participate in FDR effectively due to
- Incapacity; or
- Physical remoteness.
If you attend FDR and there is no resolution then you will be issued with a s.60I certificate which allows you to proceed to court. You will then need to file
- The certificate;
- An Initiating Application (which sets out what it is you are seeking the court do); and
- A Case Information Affidavit (which is your evidence to support the orders you seek).
Once these documents are filed (unless the matter is urgent) you will get allocated to what is known as a first return date in approximately 6-8 weeks. The file is then triaged through the Family Court as to what should happen.
Family Dispute Resolution is an out of court mediation that all parties (save for a few exceptions) that have disputes in relation to children’s issues need to attend before they go to court.
The process is quite simple, you and your former spouse need to have intake sessions with a mediator and then attend upon a joint session. If the mediation is successful then the mediator will assist the parties to prepare the agreement. If there is no agreement then you can request that a s.60I certificate issue which allows you to go to court.
Note that the s.60I certificate is valid only for 12 months, after which you need to go back to FDR.
Mediation is a less adversarial approach to settle your matter out of court.
Typically you will meet the mediator in advance for what is known as an intake session (essentially a meet and greet).
The mediator will then convene the mediation a few days later whereby
- You and your former spouse will both provide an opening statement to the other;
- You and your former spouse together with the mediator will work through the issues in dispute; and
- The mediation will then proceed ultimately to offers of settlement being presented backwards and forwards between the parties with the assistance of the mediator.
Child support is centrally administered through the child support agency (unless you and your spouse come to a private agreement).
The process is
- One party applies for child support – here is a link Child support assessment – How to apply – Services Australia;
- The other party is contacted; and
- Soon after that an assessment issues.
Child support is based on
- Nights of care of children under the age of 18; and
- Each parent’s taxable incomes.
You can work out the estimated child support you may be receive or be required to pay by following this link
You and your former spouse can contract out of the child support system by entering into a child support agreement. If you would like some more information or advice on this issue please arrange an appointment with one of our lawyers.
- You have
- 12 months to bring an application for property settlement or spouse maintenance after a divorce order is granted; and
- 24 months after separating if in a de facto relationship.
- There are no time limits in relation to children’s issues.
- You must file a Notice of Appeal within 28 days of the order you seek to appeal being made.
Read our article Time Limits in the Family court of Western Australia
You are required to go to counselling first to get a certificate.
The same general principles apply regardless of whether you were married or in a de facto relationship.
A Binding Financial Agreement (BFA) is a written agreement with respect to any of the property, financial resources and/or spouse maintenance of the parties of a relationship. The BFA needs to be signed by all the parties and their legal advisors and all of the conditions in the relevant legislation(s) are to be satisfied. Approval from the Family Court is not required for a BFA to be binding.
What if I do not put in place a formal Binding Financial Agreement, what might be the result for me now or in the future?
Without a BFA or final orders being made, each party can commence proceedings in the Family Court.
Any issue as it relates to children, you and the other parent must attend family dispute resolution unless one of the exceptions applies. If agreement cannot be reached, then one party will need to commence proceedings.
The Court process will depend upon
- where you want to relocate to;
- the reasons for the relocation;
- the attitude of the other parent;
- the age of the child(ren), and
- your proposals for the other parent to have contact following relocation.
Spousal Maintenance and Child Support are different. Child Support is payment made for financial support to children and in most cases is dealt with by Services Australia and an assessment of Child Support. Spousal maintenance is the payment made by one spouse to another to provide for their financial needs.
Spousal Maintenance is monies paid by one party to the other to provide financial support post separation or divorce.
You are only entitled to Spousal Maintenance if you are unable to adequately support yourself with their your personal income or assets.
Maybe. In de facto case it is called de facto partner maintenance. The same principles as spouse maintenance apply.
Spousal Maintenance is not automatic in Australia. The needs of an applicant spouse as well as the capacity of the respondent to pay Spousal Maintenance will be considered.