*The information contained in this page, and throughout this website, is general in nature. It is current at 30 June 2019 but may have been subject to change since that time. It is not intended to be, and should not be construed as, legal advice. Every case is different and there may be factors which affect the outcome or advice in your particular case. We recommend that you contact us before taking any steps regarding the issues raised in this website.
Divorce / Separation
What does ‘separation’ actually mean?
Legal separation requires “action, intention and communication”. In most cases this will be obvious, for example, one party tells the other it is over, and moves out. In other cases, such as ‘on again, off again’ type relationships, or relationships where parties ‘drift apart’, it can be less clear.
Why/when is the date of separation important?
The date of separation is important in de facto relationships, because it is the date from which time limits run. De facto couples have 24 months from the date of separation to make an application for property settlement or spousal maintenance without leave of the Court.
The date of separation can also be critically important for married couples wanting to get divorced. The reason for this is before the Court can grant a divorce order, it has to be satisfied that a marriage has broken down irretrievably. The evidence the Court requires of this is a separation of not less than 12 months before the application for divorce is made.
What does a ‘divorce’ actually mean?
Many people understand ‘divorce’ to mean the process of separating, dividing assets and making arrangements for children. But ‘divorce’ in legal terms, refers only to the dissolution of the marriage.
You do not need to have resolved parenting or financial issues before you get divorced. Likewise, you can resolve parenting and property issues without getting divorced at all.
When will the Court order a divorce?
You should only apply for a divorce once you have been separated for 12 months. It then typically takes around three to four months for the divorce hearing. Assuming the Court is prepared to make the divorce order, it then takes 1 month to come into effect. It is not until that time that divorced parties are free to remarry.
What are the effects of a divorce?
While a divorce is not related to parenting or financial issues, in addition to freeing a party to remarry, it does affect certain time limits and the validity of your Will.
Married couples have 12 months from the date a divorce order takes effect to commence property or spousal maintenance proceedings as of right. As mentioned above, in de facto relationships, parties have 24 months from the date of separation to commence proceedings for spousal maintenance or property settlement as of right.
While the separation of de facto couples does not necessarily affect their Wills, a divorce order invalidates any Will in existence that does not specifically contemplate that divorce.
If you have any questions regarding the issues mentioned above, or family law in general, we’re here to help. Please feel free to contact us to discuss your case and make an appointment to meet with us.
Telephone
(08) 6117 0460
Email
info@fmdlegal.com.au
Our Hours
Mon - Fri 8.30 – 5.00
After Hours by appointment
Address
Level 16, 251 Adelaide Terrace
Perth, WA 6000
Postal Address
PO Box Z5232
St Georges Tce
Perth WA 6000
