What is marriage separation vs divorce?

(And every other question we have ever been asked by clients seeking a separation)

No one enters into a marriage expecting or planning for divorce. However, the reality is approximately one third of marriages do end in divorce. The average length of a marriage in Australia is 12 years.

Lawpoint has helped many couples with marriage separation NSW wide. We’ve heard countless different marriage separation stories however, in our initial meetings with clients, we are often asked the same questions. That is because the issues that people find the most stressful following separation tend to be universal.

We’ve decided to collate the most common questions we get asked by those who come to us for their first marriage separation divorce consultation. These are the questions that are playing on the minds of those who have had their fair share of marital problems, have attempted a trial separation or just know that they’re ready to apply for a divorce.

The full list of questions and answers is available for download here. It also offers a general overview of the family law system following separation from a spouse or partner. It should give you a better understanding of the processes involved and the issues which you might have to deal with. It is suitable for those who are going through a marriage separation with children and those who are in a de facto relationship. It should not be relied upon as legal advice or as a substitute for legal advice. If you want advice specific to your circumstances, please contact us to arrange an appointment.

The top three questions asked by those deciding to separate marriage:

Question: can I get “full child custody”?

The term “custody” is no longer used in the family law system. Instead, the issue is who the child “lives with” and how much time they will “spend with” and “communicate with” the other parent.

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.

Every child has a right to know both their parents and the right to be protected from harm. Unless there are issues with violence or abuse, the law expects that each parent with have equal parental responsibility. 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.

If the child spending equal time with each of parent is reasonably practicable, and in the best interests of the child, then then the court will seek to make orders that give effect to that ideal.

However, in reality, often equal time is not practical, especially with a child who is younger, because constant changeovers and the instability of having to move from one residence to another on a constant basis causes disruption to the child. If this is something you are considering by agreement, then you should consider an arrangement that results in your child spending blocks of time with each parent (such as one week with you and one week with the other parent) as that is likely to be less disruptive than 2 or 3 days at a time which results in many more changeovers. There are many other considerations that affect whether equal time is practicable such as how far apart will each a parent live, does one parent have work commitments which make equal time impractical, how well do the parents get along and communicate with one another,

If it is not reasonably practicable for a child to spend equal time with each parent, the next question to decide is whether it is practical for the child to spend substantial and significant time with the other parent. Again, this must be in the best interests of the child.

What this means is that whilst you child may live with you, he or she may spend time with the other parent on a mix of weekends and regular days and nights (for example, one night per week from after school until the start of school the next day, plus each second weekend) and also holidays (for example half of each school holiday period).

Another factor that needs to be considered is who has been the primary carer of the child up to the date of separation? This is an important question because it may impact upon whether each parent has the necessary parenting skills for the child to live with them for extended periods of time, but also because it may also cause the child anxiety or distress if his or her routine with the primary caregiver is suddenly significantly changed.

It wasn’t my fault we broke up. Does that help me?

It can be emotionally devastating for a person if the breakdown of the marriage is caused by the fault of the other person, such as infidelity.

However, fault is not a factor in whether a divorce is granted. The only question that the law requires the court to be satisfied of is whether the marriage has broken down irretrievably. In other words, if the court is satisfied that there is no chance that the marriage will reconcile and the parties have been separated for 12 months, the divorce will be granted.

There are some other steps that the court will require such as ensuring that proper arrangements for the care of children aged under 18 years have been made before the divorce will be granted. 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.

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 simply because your spouse cheated on you.

However, in some cases, the “fault” can 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.

Everything is in his / her name. What do I do?

Assets acquired by during a marriage are considered to be joint marital assets, regardless of whose name the asset is held in. There are many reasons why couples may place a property in only one party’s name.

Regardless of whose name that asset is held in, the law gives the court the power to adjust ownership of property to ensure that the party who is not the registered owner of that asset gets a just and equitable share of that asset.

In addition, it is not just assets that are acquired during the marriage which form part of the asset pool. Depending on the length of the relationship, assets owned before the marriage can also be treated as joint marital assets and be subject to a property adjustment in the same way. This includes the superannuation interests held in each of the party’s names.

These are all factors that are taken into consideration as a separation agreement is being negotiated.

If you are experiencing marriage difficulties and are considering a separation download our FAQ guide on Marriage Separation for more. Or contact our experienced team at Lawpoint.

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment.

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