Separation is not always straightforward, and for some couples, financial and/or parenting matters can complicate the process even further.
It’s best to meet with an experienced family law lawyer as soon as possible, so that you are aware of your legal rights and how the Family Court are likely to deal with your matter if required to do so at some future stage. Accurate and professional legal advice is likely to assist you as you navigate the separation process.
Seeing a family law lawyer is not just for situations where there is acrimony or conflict. It is also recommended for situations where you and your ex partner are amicable and likely to reach an agreement.
There are several ways to manage a separation; some are non-court based methods, and some are court-based methods. We’ll explain the main ways to manage a separation below.
Non-court based methods
Family Dispute Resolution/Mediation is a way to handle a separation where both parties attempt to reach an agreement without going to court.
In Family Dispute Resolution, both parties will meet with a family dispute resolution practitioner (unless deemed unsuitable by the practitioner due to reasons of family violence, refusal by the other party or some other factor) who is trained and nationally accredited to meet legislative requirements. The practitioner/mediator does not represent either party and will not tell you what you should do; they will simply help you discuss any disputes you and your ex partner have and evaluate your options. This process is often more practical, less expensive, and less stressful than going to court.
Mediation is a form of family dispute resolution. It’s a confidential process where both parties meet with a mediator to discuss their issues, and try to reach an agreement that works for both parties. The mediator will not make recommendations to a couple; they will just facilitate the process. Mediation is a voluntary process, although there are occasions where the Family Court will expect you to take part in such a process (for example by adjourning a matter if proceedings have been issued to enable you and your ex partner to attend mediation or a Mediation Style Conference, if deemed appropriate).
A Mediation Style Conference is a form of mediation where the mediator chair is usually a qualified Family Lawyer (jointly selected by both parties). Both parties will be present, along with their respective solicitors, and the process will be more formal than other forms of mediation. The mediator may sometimes, at the request of parties, provide advice or their opinion as to what is the best way forward.
Negotiation is a non-court based process intended to help parties reach an agreement about property settlement or parenting arrangements. The difference between negotiation and mediation is you do not need to meet face to face with your ex partner during negotiation. For example, your lawyer may liaise with your ex partner’s lawyer via correspondence to identify the issues and attempt to reach an agreement that both parties are happy with.
If agreement is reached in relation to parenting and/or financial matters, the agreement can then be formalised by way of a Form 11 Application for Consent Orders filed in the Family Court seeking that orders be made by consent . A Form 11 application is dealt with on paper, with no attendance required. A successful Form 11 application will result in Family Court orders being made by consent, which will be legally enforceable and binding (unless changed at some future stage by further order).
If agreement is reached in relation to parenting issues, and if you do not want to have orders made by consent, you may decide to agree upon a Parenting Plan (with or without the assistance of a mediator/family dispute resolution practitioner). But this will not be legally enforceable or binding.
Before a couple can apply for a divorce, which can be a joint or sole application, the following criteria will need to be satisfied:
(a) that they have been separated for at least 12 months; and
(b) that the marriage has broken down irretrievably and there is no reasonable likelihood of reconciling.
It is recommended that you meet with an experienced family law lawyer as soon as possible, as there are also jurisdictional criteria that need to be satisfied for a divorce application and if the couple have lived together in the same home but not as husband and wife (during any of the 12 month period referred to above), then further evidence will need to be provided to satisfy this.
Once a divorce order has been made, there will then be a time limit of 12 months from the date that the divorce order takes effect within which any application for property settlement can be made (without requiring leave of the Family Court). Again, it is recommended that you meet with an experienced family law lawyer as soon as possible to discuss this further.
Court based methods
If you have tried non-court based methods and have failed to reach an agreement, or if you have reached an agreement that you want to formalise by way of consent orders, you and/or your partner may consider making an application in the Family Court.
Please be aware that there are pre action procedures that should usually be followed before issuing proceedings. For example, for parenting issues, mediation is compulsory unless your matter is urgent or mediation is deemed not appropriate. For financial matters, there should ordinarily be at least some attempt at negotiating with your ex partner by way of making a written offer and/or providing relevant financial disclosure to enable such an offer to be made. It is recommended that you meet with an experienced family law lawyer to discuss this further.
The Family Court has very wide powers, including: deciding how to divide your property if requested to deal with financial matters (which includes consideration of all assets, liabilities and financial resources of each of you, and making orders that may alter the property interests of each of you on an interim or final basis) if deemed just and equitable to do so; and what parenting arrangements will be in the best interests of your children, if requested to deal with parenting issues.
When the Family Court considers a financial case, unless agreement is reached along the way, it will ultimately make findings in relation to the assets, liabilities and financial resources of each party. In deciding on a fair distribution to each party if it considers it just and equitable to do so, it will take into account many factors, including: how much each party contributed financially and non-financially (directly or indirectly, initially, during the relationship and post separation); how much each party contributed as homemaker and parent; what kind of future needs each party has (for example, child care, health and income/income earning capacity).
Even if you pursue a non-court based method to manage a separation, it’s still important to get good legal advice as early as possible.
Friedman Lurie Singh & D’Angelo offers the services of their reliable, experienced, professional family lawyers in its offices in Perth, Jindalee, Joondalup, Rockingham and South Lake. Its family lawyers specialise in divorce, de facto separation, spousal maintenance, property settlement and parenting issues.
Friedman Lurie Singh & D’Angelo can manage your separation with sensitivity, professionalism and dedication. If you need expert advice on how to manage a separation, call Friedman Lurie Singh & D’Angelo on 08 9254 0000 or visit www.flsd.com.au