My partner and I are separating. Do I need to involve the Family Court?

You don’t need to involve the Family Court for a legal separation if you do not want to – however, you might need help resolving issues such as who will get what from your joint assets, or whether one partner will pay spousal maintenance to the other.  In the future, you may need to be able to prove that you have separated from a particular date, if you want to apply for a divorce.

Do I need to go to court to get a divorce?

Just as marriage is a legal event, so is divorce – and you need to get a divorce certificate from the Family Court of WA to officially end your marriage, which will then allow you to remarry.  You must have been separated for at least 12 months prior to seeking the divorce. You will not need to attend court for the hearing if you file a joint divorce application, however if there are children involved you will need to attend if the application is not a joint one.

When I get a divorce, will the court divide our assets right away?

When the Family Court issues a divorce certificate, it does not divide property; that must be arranged separately and this can also be arranged prior to divorce. The court will expect you to first attempt negotiation to try to reach an agreement before commencing proceedings.  People seeking property settlement must start their proceedings no later than 12 months from the date that their divorce has been finalised, or two years from the date of separation in the case of a de facto relationship.

If the court divides our assets, how does it decide?

There are many factors that the court considers when calculating a fair and equitable solution. These include the parties’ assets and liabilities acquired before the relationship, what was acquired during the relationship and the parties’ future needs, particularly where children are involved.  Other important factors to be considered are the parties’ contributions during the relationship — both financial, in the form of income-earning, and non-financial contributions, such as running the home and caring for children.  If an agreement can be reached by the parties, it can be formalised by way of a Form 11 Application for Consent Orders. Once made, this agreement is extremely difficult to alter.  Legal advice is strongly recommended before signing any papers.

My boyfriend is moving in to my house. Will he have a claim on it if we break up?

De facto relationships are now very common and often people living together acquire joint assets, which can raise issues if you decide to part. Depending on a number of factors, the court may also decide that assets acquired before the relationship need to be divided.  De facto couples have very similar entitlements to married couples, and people are strongly advised to seek independent advice before embarking on a de facto relationship to ensure they fully understand their rights and entitlements should the relationship fail. Agreements between de facto couples following separation can be formalised in the same way as between married couples.  Legal advice should always be sought before any agreement is signed.

How do we decide who gets the kids?

Regrettably, children are often the ones to suffer the most following the breakdown of a relationship – and it is vitally important proper arrangements are put in place and a routine established as soon as possible following a relationship breakdown.  It is advisable to attempt to resolve the issues amicably, and having a good lawyer can help in making the negotiations as smooth as possible.  If you and your former partner cannot reach an agreement, however, the Family Court has powers to make decisions as to who will have the day-to-day and long-term responsibility for caring for the children, including who will decide matters such as education and health.  The Court can also decide where the children will live, and how much time they will spend with each parent.

Who decides how much child support is paid?

The Child Support Agency is directly linked to the Australian Taxation Office, and has been involved in cases involving children of separated parents since 1 October 1989.  The agency’s function is to assess the amount of support to be paid by the liable parent, and this is in direct proportion to that parent’s income and expenditure.  The agency can arrange for the collection of this money, or the parents can make private agreements between themselves.

Do I need to pay my ex-partner maintenance?

Spousal maintenance is different from child support, in that it is money paid by one partner to another following separation. It is usually paid when one person has children to care for, or does not have the necessary skills to secure gainful employment.  The amount to be paid is usually negotiated at the time property settlement is calculated, and is based on similar factors considered for property settlement.  As with property settlement, a spousal maintenance application must be made no later than 12 months from the date that the court finalises the parties’ divorce, and usually ceases to be paid when a party remarries or takes a de facto partner.

I don’t think my ex-partner’s child is really mine. Can I make her prove it?

DNA testing is a difficult and emotional area, but increasingly accompanies child support matters if there is doubt as to whether the father is the biological parent.  If the two parties agree, DNA testing can be conducted voluntarily simply by contacting a registered laboratory.  If one party objects to a test being carried out, however, an application can be made to the Family Court for an order to compel the test. In that case, it is usual to also seek a stay in payment of child support until the test outcome is known.

If you are worried about a family law matter, or are planning to begin or end a relationship, you can contact our Legal Information Desk lawyer Ken Eastman for a fixed-fee 20-minute appointment at just $35.  He will be able to provide advice about your rights and responsibilities and indicate what further action you can take.

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