Australia: What you need to know before separating from your partner

Last Updated: 7 June 2019
Article by Simon Creek

Key considerations early on.

Separating from your spouse or de facto partner can be incredibly overwhelming. Your personal life is falling apart and you are working hard to simply keep everything afloat. The last thing on your mind is how the decisions you are making early on affect your legal rights and entitlements down the track. Rather, you are making snap decisions now in order to survive emotionally. The problem however, is that the decisions you do make early on can have a significant impact on your family law rights and entitlements. Below are a couple of tips that you should take into account early on before making any impulse decisions that can affect your rights down the track.

How long do I have to be separated before getting a divorce?

Parties need to be separated for at least 12 months before making an application for Divorce in the Family Court. This is to establish that there has been an irretrievable breakdown of the parties' relationship. Notwithstanding this time limitation, parties can immediately resolve financial matters arising from the breakdown of their relationship, they do not have to be divorced to do so.

What do I need to do to get divorced?

If you want to get divorced you need to lodge a Form 3 Divorce Application in the Family Court. This form is available on the Family Court of WA website. You can make either a joint application with your former partner or a sole application. If you make a sole application you will need to effect service of the documents on the other party and provide the Court with the documents to evidence that this has taken place. If you and your spouse have lived under the same roof for part of the requisite 12 month period after separation you will need to file further documentation in addition to the application.

Should I move out of our home?

It is often difficult to continue living with your spouse or de facto partner after you have separated. There may be high levels of conflict and this can be damaging emotionally to yourself and importantly, to your children also. You may make the decision to move out to reduce the emotional stress on yourself and your children. It is important to note however that if you move out of the former matrimonial home ("FMH") and your former partner continues to live there, it can very difficult to have them move out and for you to resume occupation of the FMH down the track.

The urgency associated with this decision may be increased when there are circumstances of family violence. In these circumstances it may be appropriate to obtain an interim Violence Restraining Order on an ex parte basis (without the other party being present) and to seek an Order that the other party be restrained from coming near the FMH. A victim of family violence who often is in the more vulnerable position financially should not be made homeless as a result of their fear. This option should be considered in appropriate circumstances only.

What do I do when my former partner won't let me see the kids?

The Family Court considers the best interests of the children as the paramount consideration. Generally the primary carer of the children continues in that role after separation and unfortunately, they sometimes unreasonably limit the time that the children spend with the other parent.

Before a parent can make an application to the Family Court to obtain Parenting Orders, it is mandatory for the parents to participate in Family Dispute Resolution ("FDR"). This is a confidential process whereby the parents are assisted by a mediator to try to reach an agreement in respect of the arrangements for their children. There may be exceptional circumstances where FDR is not appropriate and the FDR Practitioner is required to make this determination.

If FDR is unsuccessful the FDR Practitioner will issue a certificate which entitles a party to make an application to the Family Court for Parenting Orders. Once the application is filed at the Family Court it can take a long time for the application to be listed for hearing and often procedural Orders only will be made at that first return date. In other words, if the other party is unreasonably restricting your children's time with you, delay is not usually in your interests and you should commence the above process as soon as possible.

A very important consideration however is that the social sciences material indicates that it is the conflict between the parents that has adverse impacts on the children, as opposed to the separation itself. You should at all times try to put aside your dissatisfaction with the other parent and instead focus on the interests of the children and how they are best met by maintaining a working co-parenting relationship with the other parent. The purpose of the FDR process is to encourage parents to work together focusing on the interests of their children before engaging in what is an adversarial process.

Do I need legal advice?

Before making any rash decisions, get legal advice early on. Ensure you are making well-informed decisions and empowering yourself to manage the separation as best you can. It is difficult enough.

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.

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