Question 1

When should I seek legal advice after separation?

Accepted Answer

Each party to the relationship can have different dates when they considered the relationship had irretrievably broken down.

Differing dates of separation?

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 preserve the asset pool and minimise future risk and legal disputes.

Question 2

Why is the date of separation important?

Accepted Answer

An important legal aspect of separation is understanding time limitations, post-separation spending and arguments about wastage and how this may impact your potential settlement or the adjudication of your matter.

Question 3

Can property settlement and parenting matters be resolved before divorce?

Accepted Answer

You can reach a legally binding settlement regarding children and/or property and/or spousal maintenance before making an Application for Divorce.

Question 4

Do different laws apply to married and de facto relationships?

Accepted Answer

Yes.

Question 5

What are the requirements for obtaining a divorce in Western Australia?

Accepted Answer

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;
if you and your spouse have been separated for at least 12 months and 1 day;
if there is any reasonable chance of you and your spouse reconciling your relationship;
if you are separated but have lived 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 had irretrievably broken down during this time;
if you or your spouse meet the residency requirements to enliven the jurisdiction of the Family Court of Western Australia;
if 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; and
if 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.

Question 6

Does a divorce automatically finalise property settlement and parenting arrangements?

Accepted Answer

Yes.

Question 7

What happens when my Divorce Order becomes final?

Accepted Answer

When a Divorce Order becomes absolute, your marriage becomes legally dissolved. Even if you resolve financial family law matters and have a Family Court Order reflecting the same – absent a Divorce Order being extracted, you will remain legally married.

Question 8

How long do I have to apply for property settlement or spousal maintenance after divorce?

Accepted Answer

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 seeking orders for property settlement and/or spousal maintenance. After 12 months and 1 day have passed, either party will have to seek leave of the Court to have their application considered for filing outside of the said time period. The time limitations do not include Court proceedings relating to children and/or seeking parenting orders.

Question 9

Can I remarry once I am divorced?

Accepted Answer

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 once you become divorced.

Question 10

Should I make a Sole Application or Joint Application for Divorce?

Accepted Answer

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 service and associated filing requirements for sole applications.

If your former spouse does not agree to make a Joint Application for Divorce, then you can file a Sole Application absent their consent.

Question 11

What is a de facto relationship?

Accepted Answer

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.

Question 12

How does the Court determine whether a de facto relationship existed?

Accepted Answer

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.

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 exhaustive, and other factors can be considered by the Court.

Question 13

Does the end of a de facto relationship automatically resolve financial or parenting matters?

Accepted Answer

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.

Contact Richardson Family Law for advice regarding time limits and to be aware of your rights and obligations.

Question 14

How long do I have to apply for property settlement after a de facto relationship ends?

Accepted Answer

Once the relationship has irretrievably broken down, either party has within 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 said time period. The time limitations do not include Court proceedings relating to children and/or seeking parenting orders.

Question 15

Do I need to legally end a de facto relationship?

Accepted Answer

You do not need to make an application to the Family Court of Western Australia to legally dissolve your de facto relationship.

Question 16

When can I apply to the Family Court following the breakdown of a de facto relationship?

Accepted Answer

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 meets 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.

Question 17

Should I update my Will after a de facto relationship ends?

Accepted Answer

Yes.

Divorce & Separation

Our Expertise

Understanding divorce in Western Australia

Common Questions & Answers

General Separation

Married Couples

De Facto Relationships

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