- Divorce & Separation & De Facto Relationships
Divorce & Separation & De Facto Relationships
Separation (Divorce & De Facto Relationships & Same Sex Couples)
Each party to the relationship can have different dates when they considered the relationship had irretrievably broken down. To minimise disputes regarding the date of separation (and post-separation spending and post-separation conduct) we often suggest that a carefully drafted electronic message is sent to your former spouse confirming the end of the relationship.
We suggest that you obtain legal advice before you communicate to your spouse that the relationship has irretrievably broken down so that our advice is tailored to your circumstances. Our advice can also assist you to minimise future risk and legal disputes.
An important legal aspect of separation is understanding time limitations and the passing of time and how this may impact your potential settlement or the adjudication of your matter.
The law applies to same-sex and heterosexual couples who are in a de facto relationship and/or married.
Our practice proudly promotes equality including but not limited to people’s sexual preferences, gender, culture, religion, race and so on.
Divorce (Married Couples)
When a Divorce Order becomes absolute, your marriage becomes legally dissolved. Unless one or both parties make an Application for Divorce, you will remain married regardless of your relationship ending.
Some requirements must be met before making an Application for Divorce which will vary depending on your circumstances. Before considering making an Application for Divorce you may consider if:
- your marriage is valid;
- you and your spouse have been separated for at least one year;
- there is any reasonable chance of you and your spouse reconciling your relationship;
- you are separated but live under the same roof in the 12 months preceding your Divorce Application. If this is the case, you will have to provide the Court with further information to satisfy that the relationship has irretrievably broken down during this time;
- you or your spouse meet the residency requirements to enliven the jurisdiction of the Family Court of Western Australia;
- you have children who are under the age of 18 years old. If this is the case, you will need to provide the Court with information regarding the day to day care, maintenance, and welfare of the children of the marriage (you will also have to attend the Divorce Court Hearing);
- you are seeking an Application for Divorce before you have been married for 2 years. If this is the case, you will have to provide the Family Court with a family counselling certificate and/or further information as to why you have not complied with this requirement.
A Divorce Order does not result in the settlement and/or automatic adjudication of financial and/or child-related matters. However, it does have an impact on time limits.
You can reach a legally binding settlement regarding children and/or property and/or spousal maintenance before making an Application for Divorce.
Once the Divorce Order is extracted (and made final), either party has 12 months from the date of the final order to file an application in the Family Court of Western Australia relating to property settlement and/or spousal maintenance. After the said 12 months have passed, either party will have to seek leave of the Court to have their application considered for filing outside of the time period. The time limitations do not include Court proceedings relating to children and/or seeking parenting orders.
Once the Divorce Order becomes final, either party are legally able to remarry. If either or both parties remarry before the Divorce Order becomes final, then they may be committing the offence of Bigamy. We also suggest you obtain legal advice from a lawyer who practices in the area of Wills and Estates to ensure that your Will is valid and reflects your wishes now that you are divorced.
The good news is that you do not need your former spouse’s consent to make an Application for Divorce. You can make a Sole Application for Divorce or the parties can make a Joint Application for Divorce. Where possible, it is preferable to make a Joint Application for Divorce because this removes the requirement of personal servic
De Facto Relationships
A de facto relationship is a relationship between two people who are not married to each other but who live together in a marriage-like relationship.
A Court may make a declaration that a de facto relationship existed if:
- they are not already married and/or not related family members;
- there has been a period, or a total of periods, of the de facto relationship of at least 2 years duration; or
- there is a child of the de facto relationship; or
- a party to the de facto relationship made a substantial contribution, and a failure to make an order or declaration would result in serious injustice to the applicant.
Further, the Court will consider many other factors between the couple, for example:
- the length of the relationship;
- whether they lived together, and if so, for how long;
- whether there was a sexual relationship;
- how they organised their finances and the degree of financial independence;
- whether they own/ed property together and how they shared property (that may be individually or jointly owned);
- whether they care/ed for or support children (including from a previous relationship);
- how they acted/presented to the public and/or to others as a couple; and
- the degree of mutual commitment to a shared life.
The above list is not an exhaustive list and other factors can be considered by the Court.
Just because the relationship has irretrievably broken down does not result in the settlement and/or automatic adjudication of financial and/or child-related matters. However, it does have an impact on time limits.
Once the relationship has irretrievably broken down, either party has 24 months from the date of separation to file an application in the Family Court of Western Australia relating to property settlement and/or spousal maintenance. After the said 24 months have passed, either party will have to seek leave of the Court to have their application considered for filing outside of the time period. The time limitations do not include Court proceedings relating to children and/or seeking parenting orders.
A party can be in multiple de facto relationships at the same time including with a person who is legally married without committing the offence of Bigamy. We also suggest you obtain legal advice from a lawyer who practices in the area of Wills and Estates to ensure that your Will is valid and reflects your wishes now that the de facto relationship has ended.
The good news is that you do not need to make an application to the Family Court of Western Australia to legally dissolve your de facto relationship.
If you want to make an application to the Family Court of Western Australia to adjudicate property settlement, spousal maintenance and/or children’s issues, parties to a de facto relationship will have to prove to the Court that:
- you or your spouse meet the residency requirements by residing in Western Australia on the day the application to the Court is made;
- you or your spouse have been in a de facto relationship of at least 2 years duration, or there is a child of the de facto relationship or a party to the de facto relationship made a substantial contribution and a failure to make an order or declaration would result in serious injustice to the applicant; and
- both you and the other party to the de facto relationship resided in Western Australia for at least one-third of the period of the said relationship; or that substantial financial, non-financial or homemaker/parent contributions have been made by one of the parties to the de facto relationship while residing in Western Australia.
One of the key financial family law differences between parties in a de facto relationship and those who are legally married is the Court’s lack of capacity to transfer superannuation entitlements between spouses. However, in late 2019, a bill was introduced to Federal Parliament which if passed, will facilitate the transfer of superannuation between parties to a de facto relationship.