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. 

The most important factor that the court must consider when deciding who a child lives with is what is in the best interests of the child. Unless there are issues with violence or abuse, the law expects that each parent will have equal parental responsibility. 

It’s important to note that the term “custody” is no longer used in the family law system. Instead, the court now deals with who the child “lives with” and how much time they will “spend with” and “communicate with” the other parent. 

The law is designed from a starting point that every child has a right to know both their parents. Equally, every child has the right to be protected from harm. The law expects that each parent will have equal parental responsibility unless there are issues with violence or abuse.  

This doesn’t mean that each parent gets to spend equal time with the child. Instead, it refers to parents having an equal role in the long-term important decisions affecting a child, such as where they go to school, or what medical treatment they receive. Day to day decisions, such as what will the child eat, or can the child go to the park to play with friends are decisions left up to the parent with whom the child is spending time on a day to day basis. 

TL;DR: The law doesn’t use the word “custody” anymore. Instead, the court now deals with who the child “lives with” and how much time they will “spend with” and “communicate with” the other parent. Equal parental responsibility is the default unless abuse or violence is involved. This is a summary only and not legal advice. See full answer above or discuss parenting orders with Lawpoint today for guidance tailored to your situation. 

You do not need to be divorced to have a property settlement.  

Property settlement refers to the division of property assets of the parties after a couple have separated. These decisions can start as soon as the couple separate and are not affected by whether a divorce has been granted. 

TL;DR: No. You can finalise your property settlement before you’re divorced. The two processes are separate. This is a summary only and not legal advice. See full answer above or speak to property settlement lawyers at Lawpoint today for guidance tailored to your situation.