Family Law Frequently Asked Questions
Bodekers Family Lawyers & Mediators answer some family law frequently asked questions. Whilst the answers to these questions may vary from case to case this page is intended to provide general information.
What is divorce?
Divorce is the legal ending of a marriage.
What are the grounds for divorce?
There must have been an “irretrievable breakdown of the marriage”. This is proven by the parties having been separated for at least 12 months immediately prior to making an application for divorce.
Who can make an application for a divorce?
An application for divorce can be made by either the husband or the wife individually, or the husband and the wife can jointly make the application.
What is ‘no fault divorce’?
Australia is a ‘no fault divorce’ jurisdiction. This means the Family Court will not consider why the marriage broke down or which party was at ‘fault’ in the breakdown of the marriage.
Does a divorce deal with property and children’s matters?
A divorce order only ends the marriage. It does not deal with issues relating to your children or finances. It is necessary for applications for property settlement and/or spousal maintenance to be made within 12 months of a divorce order being made.
What if I want to divorce after less than two years of marriage?
If you were married for less than two years, you and your spouse must attend counselling before applying to the Family Court for a divorce. You will need to file a counselling certificate with your application for divorce. If you don’t attend counselling, you must seek the Court’s permission by filing an affidavit with your divorce application.
Do I need a will when I divorce?
You will need to make a new will once your divorce has been granted. In Western Australia, a will is revoked by divorce if the divorce occurs on or after 9 February 2008. If you do not want your will to be void, you will need to have this intention expressed in your will.
Do I need a will when I separate?
It is often necessary to change your will once you have separated from your partner.
What is spousal maintenance?
Spousal maintenance is the money paid by one party to provide continuing financial support to the other party post separation or divorce.
Am I entitled to spousal maintenance if I have been in a de facto relationship?
Spousal maintenance can apply to both marriage and de facto relationships.
Am I automatically entitled to spousal maintenance?
Spousal maintenance is not an automatic entitlement. Spousal maintenance will only be required if a party is unable to adequately support themselves.
When do I need to make an application for spousal maintenance If I have been married?
If you are divorced, an application for spousal maintenance must be made within 12 months of the divorce being granted. You will need special permission from the Family Court if you make an application for spousal maintenance after this time.
When do I need to make an application for spousal maintenance if I have been in a de facto relationship?
If you have been in a de facto relationship, you must make an application for spousal maintenance within two years of the breakdown of the relationship. You will need permission from the Family Court if you make an application outside this time frame.
What is property settlement?
Property settlement is the division of property (assets, liabilities and superannuation) owned and acquired during a marriage or a de facto relationship.
When do I need to terminate the financial relationship?
After the breakdown of a marriage or de facto relationship, it is necessary to terminate the financial relationship and divide the assets and liabilities between the parties.
How do I terminate the financial relationship?
The financial relationship is generally not terminated until an order has been made by the Family Court. An order can be made by consent, which is an agreement reached between the parties, or through the judicial determination of the Family Court.
Is the process of property settlement the same for married and de facto relationships?
The same general principles apply regardless of whether the parties were married or in a de facto relationship, however there are some differences in Western Australia.
How are child support and spouse maintenance different?
Child support is payment made for financial support to children. Spousal maintenance is payment made by one spouse to another to provide for financial needs.
What is child support?
Child support is the financial support paid to contribute toward the costs of caring for the children of the relationship.
What is mediation?
Mediation is a form of alternative dispute resolution which aims to assist two (or more) persons such as a separating couple to solve their own legal problems and reach an agreement or decision together.
Is an agreement reached in mediation legally enforceable?
An agreement reached in mediation can be formalised by making an Application for Consent Orders to the Family Court. This can provide couples going through separation or divorce security in knowing their agreement is an enforceable Court order.
Why should I attend mediation?
There are several reasons why a person would attend mediation. Compared to litigation, mediation is usually less expensive and quicker. Mediation also provides parties with the opportunity to have control over the outcome rather than having to be decided by a Judge or Magistrate.
What outcomes can be achieved in mediation?
Most areas of family law can be resolved at mediation. For example, the care of children (child custody), the division of property following (property settlement), the support of a spouse (spousal maintenance), child support (child maintenance), adult child support, relocation (the proposed relocation of one parent to another country) and other areas of family law.