When married parties separate, several matters need to be considered, including:
When making an Application for a Divorce there are a number of time limits that will apply.
Before making an application for divorce, you must be separated for at least 12 months. Separation does not require an agreement between you and can be initiated by one of the parties alone. The law also recognises that separation may not always involve the parties physically moving to different homes [Family Law Act 1975 (Cth) s49].
You can be living separately under one roof and still meet the requirement to be separated for 12 months.
If one party seeks to separate, but the other does not, or there is a dispute about the separation date, then an affidavit may be required alongside the divorce application to set out the date and circumstances of separation.
If you are worried that there may be a disagreement about the date of separation in the future, then you may wish to put something in writing to the other party.
If you have been separated under the same roof for part of the 12-month period, you will also need to file an affidavit that sets out the circumstances of your separation. This affidavit will need to detail the facts you rely on to say that you and the other party were no longer living in a relationship, even though you were in the same property.
This can include:
Both married and de facto couples may need to seek a division of property following separation. Different time frames apply to property settlements for de facto and married couples. You should try to reach an agreement and enter consent Orders within these time limits on property settlements.
If you cannot reach an agreement, you should consider whether or not it is in your interests to commence proceedings with the Federal Circuit and Family Court within the same time limit. These limits are:
You may need to seek some legal advice about your separation date to ensure that you take the appropriate steps before the relevant limitation date has passed.
If you seek to make an application outside the limitation period, you will need to demonstrate to the Court that you, or the children of the relationship, would suffer hardship if the application did not proceed.
In addition, the law around establishing hardship is complex and will depend on your specific circumstances. They will also take into account the prospects of any claim sought and the prejudice to the other party.
When making a claim for hardship, it will be important to explain the reasons for the delay in filing proceedings.
Once litigation has started, there are other timeframes to keep in mind. These relate to the filing of documents and applications. A few examples are:
You should also keep in mind any timeframes set out in Orders made by a Judge or Registrar. Failure to comply with timeframes, even those set out in Orders and not legislation, can impact your ability to proceed with a hearing or result in Orders being made without you having a chance to defend the Application.
If you have separated or are contemplating separation, it is prudent to seek some advice around your entitlements and any time limits that may apply to you.
Do you have a question about family law or relationship law?
If you would prefer an Watts McCray team member to contact you, complete the form below.