Lawyers are experienced in this process and are there to assist you in one of the most emotionally stressful and pivotal moments of your life. Lawyers assist in negotiations and aim to achieve the most favorable outcome in regard to your property and your children.

Meeting with a family lawyer will enable a greater understanding of the process of separation, in addition to explaining any alternate dispute resolution methods that are both time and cost-effective.

At Hamilton Thomas Lawyers, we aim to get you out of the legal system as quickly and as cost-effectively as possible.

Australia has a no-fault divorce. This means that there is no need to provide any reasons for divorce other than that the relationship has broken down irretrievably and there is no reasonable likelihood that you will get back together. To be eligible to apply for a divorce you must have been separated for a period of 12 months. This can include being separated but still living under the one roof.

You must first lodge your divorce application with the Federal Circuit and Family Court of Australia. The Court will then allocate a divorce hearing date. Under normal circumstances, this date will usually be within one (1) – three (3) months of filing your application. If it is a joint application you will not need to attend court. If it is a sole application and there are children under 18, court attendance is required.

If the Court is satisfied that the relationship has broken down irretrievably and there is no reasonable likelihood that you will get back together, a divorce order will be made and comes into effect one (1) month and one (1) day from the date of the hearing.

In its essence, the Family Law Act 1975 contains mirror provisions that apply to both married and de facto couples.

In Australia, married and de facto couples essentially have the same legal rights and

obligations. There is, however, some fundamental differences for de facto couples that are more difficult to establish than if you are married.

De facto couples must first prove that a de facto relationship exists and is valid. One of the criteria (but not definitive) is the length of your relationship. Other factors that are considered are if you have a child together or have made substantial contributions to the relationship.

Establishing a date and proving the relationship may be difficult and time consuming and you may wish to register your de facto relationship with the relevant state department.

Overall, the main differences between de facto and married couples, from a Family Law perspective, is proving that the relationship exists, and the time limits imposed on applying for property settlements.

What is spousal maintenance?

Spousal maintenance is money paid by one spouse to the other, in circumstances where one party is unable to support themselves adequately, following a separation.

When can you apply?

You do not need to be divorced and it is wise to seek advice as to your entitlement to spousal maintenance immediately upon separation. Spousal maintenance can be either a payment directly to you, or payments to expenses such as the mortgage or car repayments.

How do you apply?

In family law, it is always recommended that you attempt to reach an agreement with the other parent before commencing any legal proceedings. It is now a requirement to attempt dispute resolution prior to the commencement of any court proceedings. However, if you cannot reach an agreement with the other parent, or if the matter is urgent or an exemption to dispute resolution is applicable (for example in the case if family violence), you can lodge an application with the Federal Circuit and Family Court of Australia seeking maintenance orders. The court will determine the level of spousal maintenance based on the financial needs of the applicant and the financial capacity of the other parent.

Once you have separated from your partner, it is crucial to re-evaluate the contents of your Will to accurately represent the change in your personal circumstances and wishes.

It is also recommended, subject to financial/taxation advice, that you also change the current beneficiary in your Superannuation policy, as this is often your partner. Similar advice is given to change any Powers of Attorney that are currently in place. You may need to revoke those powers immediately after separation.

This may occur if your spouse/partner has disposed of assets that would normally otherwise be included in the asset pool. The most common cause of this, is when a spouse has engaged in gambling.

In certain situations, where a spouse disposes of assets on illegitimate causes, the Court may agree to give you a cash adjustment for the value of the lost asset (or part of the value). The Court will only grant this if a party has recklessly or negligently disposed of an asset to reduce its overall value. If the matter is urgent, you may also apply to the Court for an injunctive order to stop the other party from disposing of any assets upon separation.