Separation and Divorce FAQs

May 25, 2016 – at 4:11 am – by Bodekers Family Lawyers

Separation FAQs

What is separation?

Separation is when you and your partner stop living together in a domestic or “marriage-like” relationship.

Do we need to agree to separate?

You and your partner do not need to agree to separate. Separation involves one person deciding to separate, acting on that decision and telling the other person.

Do I need to do anything to record that I have separated?

You do not need to do anything in particular to record your separation. However, you may need to be able to provide evidence as to when you separated, for example, if you are seeking a divorce order or in property settlement proceedings.

Can we be separated if we are still living in the same house?

Yes. You and your partner can separate but continued to live “under one roof”. There may be situations where separation under one roof needs to be proved to the Family Court, for example if you are seeking a divorce order.

Do I need a will when I separate?

It is often necessary to change your will once you have separated from your partner.

Divorce FAQs

What is divorce?

Divorce is the legal ending of a marriage. In Perth, Western Australia married couples need to show they have been living apart and separately for a year to get divorced. There are other factors that the Court will consider such as whether there is a likely chance of reconciliation.

You can obtain a divorce order from the Family Court of Western Australia.

What are the grounds for divorce?

A divorce order can be made where there has 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. The Family Court must also be satisfied there is no chance of reconciliation.

When can I file for divorce?

A divorce application can be completed and filed 12 months after the date of separation.

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 if a party was at ‘fault’ in the breakdown of the marriage.

Does the divorce order 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. There are time limits relating to property and/or spousal maintenance applications after an order has been 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. 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 application.

Do I need to attend Court to get divorced?

Do I need to attend Court?

If there is no child of the marriage currently under 18, you may not be required to attend the hearing. This applies for both sole and joint applications.

If you make a joint application and there is a child of the marriage currently under 18, you may not be required to attend the hearing.

If you make a sole application and there is a child of the marriage currently under 18, you will need to attend the hearing.

When can I re-marry?

If you have been married, you can only re-marry once a divorce order has taken effect. You should not plan to remarry until the divorce order is finalised (in most cases, one month and one day after the hearing).

When will my divorce take effect?

After you file your application you will be given a hearing date. This applies even if the divorce is heard ‘in the absence’ of the parties. The order will take effect one month and one day after the date of the hearing.

How much does it cost to get a divorce if both parties agree?

The filing fees for obtaining a divorce in Perth Western Australia change. The Family Court of Western Australia website can provide up to date information on this.

 

Do I need a will when I get divorced?

You will need to make a new will once your divorce has been granted. In Western Australia, a will is revoked by divorce if it 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.

How we can help

Bodekers Family Lawyers & Mediators are very experienced in divorce family law in Perth, Western Australia.

We offer clients a free pre-read and first appointment at a reduced rate. You can learn more about what to send us in your complimentary pre-read before your first appointment here.

Write to us below to secure your free pre-read and no-obligation first appointment.