Family Law

Separation and divorce

In Australia applying for a divorce is a separate process from the requirements for pursuing a financial settlement or parenting orders.

Divorce applications are filed electronically and filing fees must be paid to the court.

When can you apply for a divorce?

An application for divorce can only be made after the parties to a marriage have been separated for at least 12 months.

A person cannot obtain a divorce without proving to the court that they have taken appropriate steps to serve upon their spouse a copy of the sealed application that has been filed. A sealed copy means a copy with the official court stamp marked on the document. However once proper proof of service is filed, usually a divorce will be granted if:

  • the parties have been separated for 12 months with no likelihood of reconciliation; and
  • where there are children under the age of 18 years, the Court is satisfied that appropriate arrangements are in place for their care and wellbeing.

In some cases, it is possible to prove separation occurred even if the parties remained living under the same roof for some or all of the separation period, provided satisfactory evidence of separation can be produced to the court which requires affidavit evidence from third parties to be filed.

Property and parenting matters

The Family Law Act is federal legislation which provides for mechanisms to deal with property and parenting issues of married and bona fide de facto couples following separation.

Are there time limits?

It is important to remember however that any Court proceedings for a financial settlement must be commenced within the following prescribed time limits:

  • 12 months after a divorce is granted


  • 2 years after the breakdown of a bona fide de facto relationship.

Mandatory ‘Pre-Action Procedures’

Taking action to sort out family law parenting or property matters does not necessarily mean litigation, but includes advice, preparation and attempts to negotiate outcomes.

Various legal and other issues must be considered when trying to achieve the most effective long-term outcome regarding property and / or parenting disputes. Even if no immediate court action is contemplated, early advice is beneficial to ensure clients can make informed decisions when appropriate, to conduct negotiations, or take appropriate further steps to progress the matter.

Children’s matters

After a relationship breakdown trying to agree on parenting arrangements can be stressful. Who should the child live with? How often should they see their other parent? How do parents manage changeover between homes? What about sporting or other activities, how are they fitted into any shared parenting arrangement?

Disagreements may occur but the basis for making any decision should be what is in the best interests of the children.

For parenting cases and property matters, except where there is urgent reason to take immediate action, parties are required to make some attempt to negotiate before filing any application in court.

In parenting matters parties should arrange and attend family relationships dispute resolution for discussion of their parenting proposals. If agreement is reached it is possible for a consent application for orders to be filed in court. Otherwise the parties can rely on their agreed parenting plan without the need for any formal court order. Sometimes a simple parenting plan works very well.

The relevant law does set out that:

  1. After separation both parents should usually continue to share equally their parental responsibility for the long-term welfare of their children irrespective of which parent is the primary caregiver. This means parents are required to consult each other on important decisions such as deciding where the children should go to school or when permission should be given for surgery or treatment for a health condition (unless there is an emergency and a decision on health needs to be made immediately);


  1. Subject to individual circumstances children should be able as far as possible to spend substantial and significant time with each of their parents. This is often misinterpreted as meaning equal time. The Family law Act does not state that children must spend time on a 50/50 basis with each parent. It simply recognises the importance of children being able to maintain a close and ongoing relationship with both parents, which is aided by children spending quality time not only with the parent with whom they live but also the parent with whom they do not live. Children being with each parent on various occasions including some overnight and holiday time as well as ordinary weekday time, even when parents work, should be considered as part of normal parent/ child interactions.

What is a Section 60I certificate?

If the family relationships dispute resolution is unsuccessful or if one party refuses to attend then an application to court may be necessary and a certificate under section 60I of the Family Law Act must be supplied from the family relationships dispute resolution provider, to demonstrate that dispute resolution was at least attempted by the applicant seeking parenting orders.

Urgent Matters: When can you apply to court without taking pre action measures?

Urgent matters might arise in parenting matters if there are concerns about violence or child abuse or abduction for instance.

In property matters sometimes urgent orders must be sought to preserve assets or restrain dealing with assets.

The Court does try to deal promptly at least on an interim basis with urgent matters but of course most matters in family law would benefit from an early outcome which is why much emphasis is given to encouraging parties where possible, to pursue dispute resolution mechanisms to try to achieve earlier settlements by consent.

Financial Matters

A property settlement also referred to as a financial settlement, is intended to formalise the division of the parties’ assets and liabilities. Parties can commence action to seek a financial settlement immediately upon separation.

Compulsory Disclosure of Financial Assets Liabilities Resources

For financial matters as part of the negotiation attempts required before commencing any court action, each party must comply with the relevant family law rules to make full financial disclosure to the other regarding income, assets, financial resources and superannuation entitlements.

What is a relevant Asset?

In family law financial matters parties are required to establish a balance sheet showing what each party owns at time of separation and what liabilities exist.

Distribution of the net balance sheet can then be considered. Just because an item is on the balance sheet does not mean it will be shared equally.

Is Superannuation an Asset?

Superannuation is a relevant asset and sometimes superannuation splitting orders are appropriate. This means that a portion of the super held in one party’s account might be transferred to their partner’s account as part of the separation with the consent of the superannuation fund. This is common when superannuation has a large value but has not ‘vested’ so cannot be immediately accessed by either party before retirement.

How are assets divided?

In negotiating how property should be divided after a break-up it is important to undertake the following steps:

  • identify the assets, liabilities and financial resources of each party;
  • assess the parties’ respective financial and non-financial contributions including contributions to the welfare of the family;
  • evaluate the parties’ future needs taking account of factors such as their relative earning capacities, state of health, education and responsibilities as primary carer of any children.

Advice from third parties!

Working through the many personal and financial adjustments after a break-up can be traumatic, and it may take some time before resolution is achieved. Sometimes family and friends trying to be supportive, give lots of advice about what is ‘fair’, which is a subjective viewpoint and is not the right term.

Is it just and equitable?

A financial settlement proposal is required to be ‘just and equitable’ taking account of the overall circumstances of each individual couple and with regard to their ability to re-establish after the separation and what effect that might have on their providing for any dependants of the relationship.

Dispute Resolution

There are many opportunities to attempt dispute resolution in family law proceedings including private mediations and conciliation within the court scenario.

How do you finalise a matter?

A family law matter can be finalised in various ways including:

  • a joint application for consent orders made by both parties without any prior application being necessary;


  • in respect of property matters parties can enter into a financial agreement, which if properly finalised is binding upon them;


  • in respect of parenting matters parties may rely on a parenting plan agreed between them regulating their arrangements about care and responsibility for the children and setting out with whom the child lives and agreement on arrangements for the children to see the parent with whom they do not live;
  • if in the first instance the parties have not agreed and either party then files an application seeking financial and/or parenting orders, the matter can be settled by consent at any stage and the court is able to make orders by consent, the majority of matters commenced in court are settled by consent, after the parties have more opportunity to consider  information and make informed decisions about outcomes,
  • failing agreement, if parties are in significant continuing dispute the court will determine the outcome.

Most family law property settlements are able to be finalised by consent rather than continuing to a final hearing with a court dictated outcome. It is important for parties to understand that if they can reach final agreement at an early stage, they will have more control over the outcome and not only save on legal costs but importantly be free to use their own resources to pursue other opportunities for their own respective benefits.

M Duncan & Associates commitment to Clients:

Our objective is to provide honest and pragmatic advice and work with our clients to achieve for them a beneficial resolution of their matter at an early opportunity thereby minimising both costs and the stress and uncertainty created by ongoing legal disputes.

If you need any assistance for expert legal advice contact us by email at [email protected] or phone us on 02 9699 9877.