If you and your spouse have decided to separate in contemplation of a probable divorce, you clearly have a lot to do and a lot to think about. It’s easy to lose track of deadlines. However, time constraints, both the starting and stopping points, are extremely important in a family law case. Failing to mind them will only make your lives more stressful.
You have three tasks in front of you:
- If you have children, making arrangements for the care and care and support of them;
- dividing property; and
- getting divorced.
Yes, of course that is a contrarian way of thinking. Most people start with the question of divorce, then property, then kids. But even when thinking about deadlines – and each task has its own – it makes sense to turn the project upside down.
Do the steps in the right order with an eye on the calendar, and you’ll get a better outcome. Most people considering divorce need assistance with this.
Arranging for the care and support of children
Regardless of whether parents were legally married, living as a de-facto couple or neither, the Court imposes no time limit to begin parenting proceedings. Generally however, these proceedings may only be brought for children under the age of 18.
However, because a Court will not approve a property settlement unless it is satisfied that arrangement has been made for the care of children and because property negotiations can be time consuming, many parties begin with the task of providing for children.
In order to begin parenting proceedings, the Family Court requires that parties first attend dispute resolution unless an exemption applies. Exemptions may be granted in the event of family violence or other limited circumstances.
If dispute resolution is unsuccessful, the parties will be issued a Section 601 certificate, with which parents are permitted to commence Family Court proceedings.
Dividing property, including spousal maintenance
Married Spouses
If married spouses are separated, but not yet divorced, there is no time limit for filing an application for property orders. In fact, many couples begin the process of negotiating a property settlement during the 12-month period of separation required to file for divorce because the process may be time consuming. In addition, as noted above, whether parents are a married or a de-facto couple, a Court will not issue a property settlement order unless provisions have been made for the care of the children.
An application for a property order must be filed within twelve months of the date that a divorce is effective, which is one month after the divorce is granted. To file after twelve months, applicants must seek the Court’s permission. Permission is not automatic. The Court will grant leave to file after the twelve-month period only if there are extenuating circumstances, including:
- hardship to the party or a child if permission is not granted; or
- in the case of an application for spousal maintenance, the spouse would be unable to support himself or herself without an income tested pension, allowance or benefit.
Seeking leave can be costly, which makes it all the more important to begin property negotiations as early as possible. There is a substantial danger that you may lose your property rights if the application for a property order is not filed in a timely way.
De-facto Spouses
De-facto couples must file for property orders within two years of separation. As with married spouses, the parties must establish the date of separation. If there is a dispute about the start date, the Court will consider extraneous evidence.
De-facto spouses can request leave to file after the two-year period, but only with the same limitations that married spouses face. In addition, de-facto spouses may only file for property order after the two-year period by post or at a Family Law Registry.
Filing for divorce
In order to apply for a divorce, the parties involved must have been separated for at least twelve months. It is important, therefore, to establish the start date of the separation. Where one spouse moves out, this is usually not too difficult.
However, some married couples maintain separate residences but view their relationship as continuing. Others continue to live under the same roof but see the marriage as over. Courts sometimes look at the date when one party clearly communicates to the other that marriage has ended, although other factors may come into play.
The attorneys at Owen Hodge Lawyers would be happy to advise you in connection with your family law case. We can help you to make sure that you do not miss any of the deadlines which form important constraints. Please call us to schedule a consultation at 1800 770 780.