separation family law

Family Law in Married Couples and De Facto Couples when Separating

Family law in WA covers issues arising from separation in both married couples and de facto couples. The two main areas in family law are property division and children’s arrangements. 

How family law applies to married and de facto couples 

The way family law operates is different depending on if you were married or in a de facto relationship. 

What is a married couple vs a de facto couple 

Married- To be married means to have been married in either a religious or civil ceremony by an authorised marriage celebrant. 

De Facto- To be classified as a de facto couple, you must have been living with a partner on a ‘genuine domestic basis’ for at least two years. 

Exceptions do apply to this, and they can include if there is a child of the de facto relationship under the age of 18, or if one party brought substantial assets into the relationship. 

What is separation 

Separation includes both physical separation, or separation under the same roof. 

  1. Physical separation- 

This means that one party moves out of the shared home to live at a different location. 

  1. Separation under the same roof 

This means that even though both parties are still living at the same location, they are essentially living separate lives. What this means is different for every couple, but can include things such as:
1) Having separate bedrooms 

2) Not socialising together 

3) Not eating meals together 

4) Not sharing household chores 

How a family lawyer can help you 

Married couples

If you are married and separated or thinking about separation, a family lawyer can help you understand:

  1. what your time limits are for making your agreement legally binding or for applying to court 
  2. what separation means and why it’s important for married couples 
  3. the process for divorce
  4. your options outside of court, including mediation
  5. how to split your joint and sole assets and what assets are able to be split
  6. arrangements for your children
  7. what a fair split looks like and how to make your agreement legally binding. 
De Facto Couples  

If you have been in a de facto relationship and separated or thinking about separation, a family lawyer can help you understand: 

  1. what your time limits are for making your agreement legally binding or for applying to court 
  2. your options outside of court, including mediation 
  3. steps to prove you were in a de facto relationship 
  4. how to split your joint and sole assets and what assets are able to be split 
  5. arrangements for your children 
  6. what a fair split looks like and how to make your agreement legally binding. 

The process for property division:

If you have a dispute about how to split your sole and joint property, the usual process is as follows: 

  1. Exchange disclosure- This means to exchange bank documents, superannuation documents, pay slips, value of shares, value of motor vehicles etc with your ex-parnter. This will help to determine what your net asset truly looks like. 
  2. Engage in negotiations with your ex-partner- Once you understand what your asset pool looks like, it is time to start negotiation’s. 
  3. Initial hearing- If negotiations are unsuccessful, the next step is to apply to the Family Court. At your first hearing, some interim orders might be made as well as procedural orders. 
  4. Conferencing – The conferencing stage is the last formal opportunity for the court to facilitate negotiations and helps the parties reach an agreement. 
  5. Readiness Hearing- if a matter still cannot be resolved, the court will set a date for a readiness hearing. At this hearing, the court will determine if the matter is ready for a final hearing or a trial. 
  6. Trial- if an agreement still cannot be reached, the final step will be to attend the Family Court of WA to make a decision about your property matter. 

The process for children’s matters: 

If you have a dispute about arrangements regarding your children, the usual process is as follows: 

  1. Family dispute resolution (FDR) – FDR is a special type of mediation designed specifically for children’s matters. Unless you are exempt from FDR, it is a requiring to attempt FDR before you apply to the Family Court of WA. 
  2. Various hearings- If FDR does not work for you, the next step will be to apply to the Family Court and attend various hearings. At these hearings, some interim orders might be made and an Independent Children’s Lawyer (ICL) may be appointed.  
  3. Readiness hearing – if a matter still cannot be resolved, the court will set a date for a readiness hearing. At this hearing, the court will determine if the matter is ready for a final hearing or a trial. 
  4. Trial – the final stage in a children’s matter is for a trial. At trial, a judge will hear evidence from all parties and come to a determination in regard to children’s arrangements. 

When to get legal advice 

There is no right or wrong time to get family legal advice. We strongly recommend getting legal advice early on, either when you are thinking about separating or have recently separated. Getting this advice early on can give you clarity, inform you as to what a fair split might look like which will aid you in your negotiations and help to mitigate conflict later on. At MKI Legal we are focused on resolving disputes and keeping people out of court as much as possible. Book