A spouse can apply for a divorce if the marriage has irretrievably broken down. This means that both spouses must have separated for no less than 12 months with no prospect of reconciliation. Counselling may assist in determining whether the marriage is salvable but there is no requirement to attend counselling unless the parties have been married for less than 2 years.
Separation is the act of communicating that the marriage is over. This usually occurs when a spouse moves out of the marital home. It can also occur when spouses remain living together under the same roof but start living independent lives. In such cases, independent evidence from a relative or close friend is required to satisfy the court that normal married life has ceased.
An application may be made by either spouse or a joint application may be filed with the court. Details as to the date of marriage and separation must be provided along with details of the care arrangements for any children under the age of 18 years.
If there are no children involved, then the court will list the application for a hearing in the absence of the parties. When children are involved, a hearing is required, and the court must be satisfied that adequate arrangements are in place for the children’s care. Proof of service of the application is always required (unless it is a joint application, where this is waived).
Once a divorce order is made, it becomes final one month and one day after the hearing. The date of the divorce is significant as there is a limitation period of 12 months to initiate a family court application for property division.
Divorce will invalidate a will, unless it specifically provides otherwise, so it is important that estate planning is also considered at that time.
When a marriage or de facto relationship has ended, the property of the parties will need to be divided. Property may include the marital home, investment properties, bank accounts, cars, shares, household contents, superannuation benefits and trust assets. Liabilities such as any mortgage, personal loans, credit card debts and taxation liabilities may also be apportioned.
In negotiating, mediating or litigating a matter, there are 4 principles under the Family Law Act and the Family Court Act, which guide the Court in determining property division.
(1) Identify and value the existing assets and liabilities of the parties;
(2) Consider the contributions of the parties;
(3) Consider the financial commitments and resources of the parties; and
(4) Determine whether the proposed orders are just and equitable.
Parties are required to provide each other with full disclosure of their financial position. Exchange of documents such as bank statements, tax returns, pay slips and market appraisals of property is required to assist parties in making a fully informed decision when resolving property matters. Agreement may proceed by way of a Form II Application for Consent Orders or otherwise a Form I Application must be filed with the Family Court.
It is useful to engage the services of a family lawyer to navigate you through this process, as well as guide you on practical matters that may arise, such as moving out of the family home and obtaining financial support from your spouse.
A de facto relationship is a relationship between two persons who have lived together in a marriage like relationship for a period of no less than two years. In determining whether or not a marriage like relationship exists, the court applies the criteria listed under section 13A(2) of the Interpretation Act (WA 1984).
Indicators of a de facto relationship are:
(a) The length of the relationship
(b) Whether the 2 persons have lived together
(c) A shared residence
(d) A sexual relationship
(e) The degree of financial dependence or interdependence
(f) The ownership, use and acquisition of their property
(g) The degree of natural commitment to a shared life
(h) Whether they care for and support children
(i) The reputation and public aspects of the relationship
Once a de facto relationship has been established, for the Family Court of WA to have jurisdiction to determine property division, an application may be filed: (1) if at least one of the parties resides in WA on the day of the application, (2) both parties lived in WA for one third of the relationship, or (3) the applicant has made substantial financial or non-financial or home-maker/parent contributions in WA. A de facto relationship must have existed for 2 years, or for a lesser period where there is a child under the age of 18 years and failure to make an order would result in serious injustice to the partner caring for the child.
When parents separate, they must agree on what arrangements to have put in place to care for their children, or otherwise an application may be made to the Family Court for orders to be put in place. Arrangements need to be made that are in the “best interests” of the child. The focus is for children to enjoy a meaningful relationship with both parents and be protected from harm.
The first decision to be made is parental responsibility, which relates to the long-term decisions that need to be made i.e. what religion should the child follow, what school should the child attend, etc. If parental responsibility is to be shared equally, then it must be considered whether it is practical and in the best interests of the children to spend equal time or “substantial and significant” time with each parent. Substantial and significant time includes weekdays, weekends, holidays, birthdays, Christmas, Easter and other special occasions.
Parties are required to make a genuine effort to reach an agreement through family dispute resolution and a certificate from an FDR Practitioner must be obtained before filing an application in court. Noted exceptions are in cases of family violence, child abuse or emergency. Agreements may be documented through Parenting Plans or Consent Orders. Parenting Plans are a signed and dated agreement that can be considered by a court but not enforced. Consent Orders are approved by the Court and may be made by parents who have agreed matters with each other at mediation or as part of court proceedings.
Engaging a family lawyer for representation in the Family Court will significantly increase your chances of getting the best result and minimise stress. At your initial consultation your lawyer will advise as to the merits of your application and assess available options. You will be told how your problem may be dealt with by up to date application of the laws to maximise your chance of success. You may be too emotionally involved in your case to remain objective.
Your lawyer will draft any court application and any affidavit that may be required for an urgent hearing or when directed by the court. Document preparation is the way you seek the orders that you wish to have put in place and is the main mechanism to present evidence of the facts to the court. There are rules of evidence that must be applied, and your lawyer can ensure that your documents are permissible and will be accepted for filing.
In court, your lawyer is your advocate and will endeavour to present your case in the most favourable light subject to ethical and professional obligations to the court. Settlement is frequently encouraged and your lawyer can help you negotiate a fair settlement with the opposing party.
Getting advice before separation or soon after separation may avoid you saying something or engaging in conduct that may have detrimental and long-term consequences to your case. Generally, anything that is said to your lawyer is confidential and advice given is privileged, which means it is not shared with the other party.
Negotiation is often the first place to start to sort out a problem with your spouse. This is usually commenced by letter sent by electronic communication. Offers to settle can be made “without prejudice” which restricts any such communication from being relied upon in court proceedings, making them inadmissible. Benefits of negotiation include addressing issues early to stop them escalating thus potentially avoiding expensive court proceedings.