Family law issues are governed by the Family Law Act 1975 (the Act), sometimes referred to online as the “family lawyers act”. It covers crucial areas that affect many people’s lives. Understanding family law will better place you to know your entitlements and navigate the legal process.
Key takeaways
- Couples must be separated for at least 12 months before applying for a divorce.
- Marriages can be nullified through a Decree of Nullity.
- Sole divorce applications require documentation to be served on the respondent.
- Spouses may co-sign the Affidavit of eFiling as joint applicants.
- Financial agreements allow parties to divide property without court oversight.
- Property orders can be sought by agreement or through litigation.
- Child support is governed by separate laws.
- Parenting arrangements prioritise children’s best interests.
- Child custody covers care arrangements and parental responsibility.
- De facto couples face different time limits than married couples.
Separation, divorce, and marriage nullity
The law streamlines the process to dissolve a marriage, while ensuring that spouses don’t rush the decision. That’s why you’re required to separate for a minimum amount of time before pursuing a divorce application.
Separation
Spouses seeking a divorce must complete a 12-month separation first. You could think of it as a mandatory cooling-off period. Section 49 of the Act allows separation to result from the conduct of only one party. It also provides for spouses cohabiting during separation. Allowing for cohabitation is a recognition by the Court that maintaining different residences isn’t possible for many couples.
To encourage couples to stay together, the Act lets you reunite for a short period without resetting your separation period. If you reconcile for less than three months, then separate again, you can resume your separation without penalty.
Nullity
Under the Act, if a marriage is found to be illegitimate, it will be nullified. A Decree of Nullity may be granted if one or both of the parties:
- Was already married.
- Was underage and didn’t have the necessary permission to get married.
- Entered the marriage under duress.
Divorce
Australia has no-fault divorce. An applicant doesn’t need to provide a reason for wanting a divorce beyond that the marriage has broken down. Parties can apply for divorce alone or jointly with their spouse.
Sole application
A sole applicant must serve their former partner with the divorce documentation before submitting the application. The respondent should be served with:
- Copy of the divorce application.
- The Affidavit of eFiling.
- The Marriage, Families, and Separation brochure.
- Acknowledgment of Service (Divorce).
Service must be completed by a third-party who is over the age of 18. If you’re unable to complete service after taking all reasonable steps, the Federal Circuit and Family Court of Australia Rules 2021 provides alternatives.
- Substituted service. The applicant may use an alternative method of service, such as serving a person who can bring the application to the respondent’s attention.
- Dispensation of service. The Court may waive the service requirement.
If a sole applicant has a child under 18 years old, they need to attend a court hearing via video link. The hearing is to satisfy the Court that appropriate arrangements have been made for the child.
Joint application
Joint applications are simpler. Both parties must sign the Affidavit of eFiling before a Justice of the Peace.
Property matters under the Family Lawyers Act
The Act allows for property matters to be organised through a private agreement or a court order.
Binding financial agreements
Parties can enter binding financial agreements (BFA) without the court’s oversight. To be legally binding, the agreement must meet certain criteria, including:
- Both parties get independent legal advice.
- Both parties sign the agreement in their lawyer’s presence.
- Neither party entered the agreement under duress or through coercion.
BFAs can be created before, during, or after a marriage. An agreement can be set aside through a termination agreement.
Property orders
Parties can seek consent orders for their property. This is faster and more cost-effective. Property orders can also be sought through court proceedings. Both avenues are assessed through a four-step process:
- The asset pool is accounted for through full disclosure and valued.
- The Court weighs the financial and non-financial contributions of each spouse.
- Each party’s future needs are considered.
- The Court determines whether the proposed orders are fair and equitable.
The parties don’t need to attend mediation before entering litigation. However, it’s strongly advised. Spousal maintenance provisions can be included.
Child support
Child support is governed by its own legislation. However, the Act allows for child support to be included in financial agreements or parenting plans. They must comply with the Child Support (Assessment) Act 1989. The Family Court generally doesn’t make orders for child support.
Parenting arrangements
The law gives parents flexibility in handling parenting matters. Parties can draft a parenting plan to organise their family circumstances. Informal plans aren’t enforceable. The Court may look at an existing plan to inform a parenting order.
Child's best interests
All decisions related to children must prioritise their best interests. The definition of a Child’s best interests, as defined in the Act, was streamlined in 2024. The Court considers six points, including safety from family violence and child abuse, and each parent’s capacity to care for the child.
Child custody
Child custody encompasses both living arrangements and parental responsibility for long-term decision-making. The 2024 amendment redefined the Court’s approach to parental responsibility. There’s no longer an assumption that both parents should be equally responsible for making decisions.
Care arrangements can be managed in many ways. Some co-parents may organise equal time with their children. However, most co-parenting arrangements involve a primary carer.
Children's contact services
In some situations with visitation rights given to one parent, children’s contact services may be necessary. Under the Act, these services assist with contact time if there are safety concerns.
Family dispute resolution
Spouses looking to settle parenting matters through litigation must use family dispute resolution. If the mediation isn’t successful, you will receive a dispute resolution certificate.
Overseas travel
Are you concerned about your child being taken overseas? A recovery order compels the child to be returned. The Australian Federal Police can also place the child on the Airport Watchlist.
De facto relationships in family law matters
De facto relationships are recognised under the Act. They are held to the same processes as married couples. However, de facto couples observe different time limits. Married couples must settle property and parenting matters within a year of receiving a divorce order. De facto couples must reach a settlement within two years of separation.
From our clients
I cannot recommend Rowena more highly! She is a caring lawyer that fights for her clients and she will ensure you get the best possible result. There is no one better! If you need legal assistance call Ferrall & Co Lawyers and you wont regret it. They will help you through the process making sure you feel supported every step of the way.
- Kassandra Neilson
Our experienced family lawyers work with new clients for successful results. Our approach incorporates collaborative law. This is a framework that helps clients find mutual solutions. You save money and increase your chances of a good result. We treat you with respect. Our fixed-fee services protect your rights.
To conclude,
Understanding family law processes allows you to control your case and develop a positive future. Divorce preparations depend on whether you’re a sole or joint applicant. Property and parenting issues can be organised with the Court or privately. De facto couples have similar rights to married spouses. But, there are differences in timelines.
Rowena, Thankyou for your support during our difficult time. Not only are you and your staff very approachable and friendly, but you got the job done. Very highly recommended.
- Karen Kelly
Contact our family law practice
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