Family law guides

Separation, and the clocks that start running

Separation is a question of fact, not paperwork. You can be separated while living under the same roof, which matters for a divorce application and sometimes for the asset pool.

Three time limits catch people out. A divorce requires 12 months of separation before you can apply. A property or spousal maintenance application must generally be brought within 12 months of a divorce becoming final, or within 2 years of the end of a de facto relationship. And a de facto relationship generally has to have lasted 2 years, or involve a child or substantial contributions, before the property provisions apply at all.

A divorce and a property settlement are different things. Being divorced does not divide your assets, and staying married does not stop you from settling property. People routinely delay one because they are waiting on the other.

Children, and what changed in 2024

The Family Law Amendment Act 2023 (Cth) changed the parenting framework from 6 May 2024. The presumption of equal shared parental responsibility was removed, along with the requirement to consider equal or substantial and significant time that flowed from it.

What remains is a single question: what is in the best interests of the child. The court now works from a shorter list of considerations, with safety from family violence and abuse given particular weight, and any views expressed by the child taken into account.

The practical effect is that arguments built around a formula are worth less than they used to be, and arguments built around the actual arrangements, the child's routine and each parent's capacity are worth more. Material still describing a presumption of equal time is describing the law as it was before May 2024.

Most of this never reaches a courtroom

The overwhelming majority of family law matters resolve by agreement, and the ones that do not are usually the ones where the process was skipped.

1. Family dispute resolution. For parenting matters it is generally compulsory before filing, and you need a section 60I certificate to start proceedings, with exceptions for family violence, urgency and risk.
2. A negotiated agreement, formalised properly. Consent orders make a property settlement binding and enforceable, and they attract duty concessions that an informal agreement does not.
3. A binding financial agreement, which is a different instrument with strict requirements including independent legal advice for both parties. Get one wrong and it is worth nothing at the moment you need it.
4. Court, where safety, disclosure failures or genuine deadlock make it necessary.

An informal agreement written on a page and signed by both of you is not a settlement. It does not bind either party, it does not stop a later claim, and it does not attract the duty relief that consent orders do. If it is worth agreeing, it is worth documenting properly.