If you are thinking about separation, it can help to get the right advice early on.
It is always a good idea to speak with a lawyer before separation so that you can understand what to expect during the process and make informed decisions about your children and assets. As well as providing legal advice about your rights and obligations, our lawyers at Mornington Family Lawyers can also refer you to separation counselling or mediation services for further emotional support during separation.
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FAQ's About Family Law Seperation
Where property is concerned, our lawyers can give you an insight into your options for achieving a final property settlement with your former partner and how such a settlement might be finalised. We can also offer you more practical advice such as how to ensure that you have access to funds after separation, what to do with any joint bank accounts and how to divide personal belongings.
Where children are concerned, our lawyers can help you to consider the options for which parent your children will live with and how much time they will spend with the other parent. We can assist you to negotiate parenting arrangements with your former partner and advise you on the best possible way to finalise the agreement.
A separation is not formally registered until a divorce is granted by the Federal Circuit Court of Australia. You do not necessarily need to get divorced after separation unless you have re-partnered and wish to remarry.
It is important to keep in mind however, that staying married to your former partner can affect your legal rights and obligations in relation to financial matters, Wills and estates. Our lawyers can advise you on whether you should seek a divorce from your former partner, assist you throughout the application process and represent you at your divorce hearing if required.
Typically when partners separate, one party will leave the former matrimonial home voluntarily. It is not uncommon, however, for both parties to temporarily remain living together while they make decisions about their financial relationship and parenting arrangements. This is known as being ‘separated but living under one roof’.
It is important to understand that both parties are legally entitled to remain in the former matrimonial home post-separation even though this may not be viable.
If your former partner is refusing to move out of the home, then unless there are safety concerns, you cannot simply force them out. It may become necessary in these circumstances to obtain a court order for exclusive occupancy that would exclude your former partner from the property. Our Lawyers can advise you on how to seek an order for exclusive occupancy or alternative options for excluding your former partner from the home where family violence has occurred.
Our lawyers can help you negotiate property and parenting issues with your former partner at any stage of your separation. You do not have to wait for your divorce to be finalised before you seek to resolve your property and parenting issues with your former spouse, either through negotiation and mediation or through the Court.
If there is a dispute about parenting, then before you or your former partner can commence court proceedings, there is a requirement that you make a genuine effort to resolve the dispute through Family Dispute Resolution first.
It is important to remember, however, that certain time limits do apply for instituting family law proceedings for property and parenting matters in the Family Court and Federal Circuit Court (save for exceptional circumstances where the time limits may be extended).
Once your divorce is finalised, there is a 12-month time limit in which you can commence proceedings for a property settlement or parenting arrangements in the Family Court or Federal Circuit Court. Separated de facto couples have two years from the date of their separation to commence such proceedings. In either case, our lawyers can assist you to sort out your property and parenting issues outside of court or to commence court proceedings if necessary.
It is not uncommon for separated parties to temporarily remain living together while they make decisions about their financial relationship and parenting arrangements. This is known as being ‘separated under one roof’ and can last for days, weeks, months or even years.
If you are applying for a divorce and have lived with your former spouse post-separation, you may have to support your divorce application with an affidavit. Our lawyers can assist you to prepare and file this affidavit and advise you during the application process if you and your former partner have been separated under the one roof.