Family Law Questions

So, you have separated from your partner and are thinking, “Now what?” Here at Aston Legal Group, we have a broad range of experience in all aspects of family law, including divorces, parenting arrangements, property settlements, family violence intervention order matters, and wills and estates. We know that the early stages of separation can be the hardest when you are trying to find your feet again, so we have compiled our top 10 frequently asked questions to ease your mind until you can speak to one of our lawyers.

1.       What if I get back together with my partner after our separation?

   If you both reconcile and re-commence your relationship for at least 3 months, the 12-month separation period will restart, and you will need to wait for another 12 months from the date of the most recent separation to file for divorce. If the reconciliation period is less than 3 months, the 12-month period does not restart, but that time does not contribute to the 12 months. For example, if you have been separated for 4 months, you will need to wait 8 more months before you can file for divorce. If you reconcile for 2 months after 4 months of being separated, then your remaining 8 months will recommence after your recent separation date.

   2.      When can I finalise property settlement?

   We recommend beginning negotiations to finalise property settlement as soon as possible after separation and before divorce, if possible. Any assets obtained after separation may still be included in the asset pool for settlement, as they are considered relevant to your financial position at the time of settlement. Once property settlement has been finalised, your former partner will no longer be entitled to any assets obtained by you after that time.

   There is also a limitation imposed after your divorce, where property settlement must be finalised by negotiation or in Court 12 months after the date your divorce was granted. If this does not occur, an application will need to be made with the Court to seek leave to finalise property matters after 12 months from the divorce date. This is at the Court’s discretion, so it is not guaranteed that leave will be granted.

   3.      Who can live in the family home after separation?

   Both partners have a right to live in the family home irrespective of who is on the title or lease. There is also no presumption that a husband or wife must leave the home, and one partner cannot force another out after separation. Typically, one person will choose to move out to avoid the strain of living together after separation.

   However, the exception to this is where family violence is present, in which case an exclusive occupancy order under section 114 of the Family Law Act 1975 can be sought from the Court to prevent a former partner from occupying the family home.  The Court will assess the best interests of any children, the circumstances (including financial position) of the former partners, their conduct in living together, and any incidents of family violence.

   The entitlements of the person leaving the house, either by their own initiative or ordered by the Court, are not affected by their moving out; their interest in the property remains.

   4.      What do I do if my former partner doesn’t let me see our children?

   It is not legal for one parent to withhold any children of the relationship from the other parent, unless family violence is involved, drug or alcohol abuse is present, or one parent suffers from extreme mental health issues that place any children at physical or emotional risk. The Court’s primary focus is on what is in the best interests of any children, and it believes that it is in the child’s best interests to have a meaningful relationship with both parents, provided they are safe from harm. 

   If your child is being prevented from spending time with you, we recommend that you speak to a family lawyer immediately.

   The Family Law Act 1957 stipulates that mediation must be attempted before parenting matters are brought before the Court. Where mediation is unsuccessful, the matter will be resolved in court.

Contact Us

If you would like advice about your family law matter and wish to obtain an understanding of the options available to you, please contact our office on (03) 8391 8411 to book a free 30-minute consultation with one of our other experienced practitioners.