A divorce is the formal legal end of the marriage. It is granted by the court and once granted, allows you to remarry.  

The definition of separation in marriage is a straightforward one. You must have been separated for a continuous period of 12 months before you can apply for a divorce. However, should you and your partner reconcile, then the 12-month period may start again, depending on the length of the reconciliation. If you reconcile for more than 3 months, the 12-month period will start again if you separate once more. 

Sometimes, separation under one roof is the only practical solution for parties. The law understands and allows this as long as the parties can satisfy the court that they were genuinely separated and that there was a genuine breakdown of the marriage. 

If the parties were separated but living under one roof, it is a requirement when you file for divorce that you file an affidavit verifying that you were in fact separated under one roof and not living as husband and wife. A third party (usually a family member or close friend) must also provide an affidavit also verifying that the parties were indeed separated but living under one roof. 

TL;DR: Divorce is the formal end of a marriage, granted by the court after 12 months of separation. You can still be considered separated even if living under one roof, but you’ll need to prove it. This is a summary only and not legal advice. See full answer above or speak to a divorce lawyer from Lawpoint for guidance tailored to your situation. 

For most family law issues, no it doesn’t. Australia’s Family Law Act 1975 (Cth) is federal legislation, which means the same rules apply across the country.  

At Lawpoint, we regularly represent clients in other states without them or us, ever needing to travel. Since COVID, the Federal Circuit and Family Court of Australia has adopted online hearings for many matters. Directions hearings, mentions and even interim hearings often run via Microsoft Teams or telephone. This shift means clients can work with us from anywhere in Australia without being disadvantaged by distance. 

TL;DR: The law is national, and often many matters go through online hearings. So you are not at a financial disadvantage if you choose to use a lawyer outside your State. The bottom line is the law is national, but choosing the right lawyer is personal. This is a summary only and not legal advice. See full answer above or speak to a Lawpoint family law solicitor today for guidance tailored to your situation. 

Fault is not a factor in whether a divorce is granted by the court. The court only needs to be satisfied that the marriage has broken down irretrievably.  

In other words, if the court is satisfied that there is no chance that the parties will reconcile and the parties have been genuinely separated for 12 months, the divorce will be granted. 

Fault is also generally not something the law considers when determining a property settlement or parenting issues. You will not get more of the asset pool because your spouse cheated on you. 

However, in some cases, your divorce lawyer might find “fault” to be relevant to what orders the court makes. For example, if separation has been caused by domestic violence, that will certainly be a relevant factor in determining what is in the best interests of the children when making parenting orders. 

There are some other steps that the court will take such as ensuring that proper arrangements for the care of children aged under 18 years exist between the parties. Also, couples whose marriage has broken down within 2 years of the marriage are required to attend marriage counselling to discuss or attempt reconciliation before the divorce will be granted. 

TL;DR: Fault is not usually considered in family law. Courts focus on facts, not who caused the separation unless violence or abuse is involved. This is a summary only and not legal advice. See full answer above or speak to a divorce lawyer from Lawpoint today for guidance tailored to your situation. 

Sometimes when parties separate, one party finds themselves in a situation where they are no longer able to meet their financial needs because they have been reliant on the other party’s income during the relationship. In these situations, the law allows the court to make an order for what is known as spousal maintenance.  

Spousal maintenance is an order requiring a party who has a capacity to do so, to financially assist their former spouse if that person cannot meet their own reasonable expenses from their personal income or assets. 

Spousal maintenance is separate and distinct from child support. Child support is a payment that one parent makes to the other, for the benefit of the children to meet costs of raising the children. Spousal maintenance on the other hand is a payment made for the benefit of the spouse. 

Child support is payable pursuant to a statutory formula that the Child Support Agency applies. It takes into account various factors including each parent’s income and the number of nights that each parent spends with the children. Spousal maintenance on the other hand is ordered by the court and the court has discretion when calculating the amount that one party must pay the other party.  

There are numerous factors that the court must consider when deciding whether to order a party to pay spousal maintenance. These include whether the person seeking the order cannot support himself or herself adequately, whether the other party is reasonably able to pay, who has the care of the children, whether a party has an earning capacity which they are not exercising, the age and health of the parties and the assets and financial resources of each party. 

Spousal maintenance does not operate indefinitely and in most cases, is for a short period of time, from when the parties separate until the property settlement. This allows one party to adequately support him or herself until they receive the proceeds of their share of the assets (although this is not always the case and it can be ordered for longer periods of time). It can be ordered to be paid as periodic payments or as one lump sum. 

TL;DR: Possibly. If you can’t support yourself and your ex has capacity to help, the court may order spousal maintenance. This is a summary only and not legal advice. See full answer above or discuss spousal maintenance with Lawpoint today for guidance tailored to your situation.