You do not have to take any legal steps to separate, and you simply start living apart. The date of separation is the date one party views the relationship as over and communicates that to the other party. It is a good idea to record the date of separation as it is relevant to other matters.

Separation can be a stressful process and engaging a family lawyer early in the piece assists with achieving the best possible outcomes. Issues that may arise when separating are what will happen with the family home, bank accounts and superannuation. Consideration will need to be given to who the children will live with, what time the children will spend with the other parent and other family members such as grandparents.

Engaging a family lawyer early in the process assists with resolution as it enables negotiations to take place before issues may escalate.

Legislation mandates the best interests of the children is the paramount consideration when parenting arrangements are put in place. Parental responsibility, which relates to major long term issues such as the children’s education, religion, health and name will need to be decided. Who the children live with and the time spent with the other parent are all issues that can be discussed and decided upon.

Parenting arrangements may be documented through a Parenting Plan or a Form 11 Application for consent orders.

A Parenting Plan is an agreement that provides for the day to day responsibilities of each parent, the practical consideration of a child’s daily life and how parents will consult on important issues about their children.  It is not legally binding and only evidences an agreement of intentions between parents about matters in relation to the children.

A Form 11 application for Consent Orders sets out parenting arrangements for children but the court must be satisfied the orders are in the best interest of the children before endorsing them as court orders.

If parenting arrangements cannot be agreed, then you are required to participate in pre-action procedures, including attending a Family Dispute Resolution Conference with an approved mediator. Exemptions may apply in relation to such conferencing, and an FDR exemption certificate can be sought if there is a history of family violence or child abuse. Cases involving urgency or impracticality to attend a dispute resolution conference also give rise to exemptions from the pre-action procedure and advice from your family lawyer as to whether or not your matter is exempt should always be sought.

If parenting arrangements cannot be agreed then either party can start court proceedings by filing an Initiating Application to make orders. Such application is comprised of the following:

1. Form 1 Application which may deal with who the child will live with, how much time the child will spend with each parent and other people such as grandparents, parental responsibility, how a child will communicate with a parent they do not live with and any other aspects of the child’s care.
2. Case information affidavit. 
3. Affidavit (if there are grounds of urgency or leave of the Court has been given). 

Your family lawyer has the experience and knowledge of the court processes to ensure that the initiating application is prepared correctly and details your position clearly so that the court can make a decision in the best interests of the children.

In dividing property, legislation requires married and de facto spouses to identify all of their property, liabilities and superannuation member entitlements. An assessment is then made of how each party contributes to the family both financially and non-financially. The next consideration is whether they are any special circumstances that may require any adjustment to be made such as where a party has the care of a child under the age of 18 years old.

Finally, the resulting division of property must be just an equitable if the agreement is to be implemented through consent orders.

There are time limits on commencing Family Court proceedings for property division, which is one year from the date of divorce for married couples. De facto couples may commence Family Court proceedings within two years from the date of separation.

An application for divorce may be made once you have been separated for no less than twelve months.

In preparing for your divorce application, your lawyer will need a copy of your marriage certificate and any health care card or concession card for which you may be entitled for payment of a reduced filing fee.

The contact details of your spouse will be required for the service of the application; otherwise, a special application for substituted service or dispensation of service must be made to the Court.