Separation occurs where one party or both expressly and clearly communicate to the other party that the relationship is over and beyond repair. Where the relationship ends and both parties begin living isolated lives the parties will be ‘separated’.
It is important to note that the Family Court of WA requires persons who have separated to prove their separation to the court. This is often the case where:
- parties continue to live under the same roof;
- one party disputes the separation; or
- where one party denies the existence of the relationship altogether.
In order to prove separation you need to retain the true date of separation and where possible provide written or other evidence (for example: a text message or letter).
Making an Application for Divorce
An Application for Divorce is a straightforward procedure. You can apply for a divorce from your spouse by way of a single or joint application. Joint applications are encouraged for those who have maintained a positive and friendly relationship post-separation.
In the event you have been married less than 12 months and wish to divorce the Family Court of WA will require you to attend family counselling services.
Where children under the age of 18 are involved the Family Court of WA is under a positive obligation to ensure that proper parenting arrangements are in place for the children before granting your Divorce.
We can assist you with both single and joint applications, the service of those applications, and the court appearance.
Children & Parenting
When deciding on children’s orders the paramount concern of the Family Court of WA is what is in the best interests of the child. The best interests of the child are determined by weighing up the considerations listed in the legislation.
When it comes to children’s orders, before filing an application at the court you are required to follow the pre-action procedure and make a genuine effort to agree to a parenting arrangement with the other party. You therefore must attend family dispute resolution.
The pre-action procedure is only dispensed with in certain circumstances including urgent matters and allegations or risk of child abuse.
When contemplating children’s orders you should consider the following:
- which parent the children live with;
- what time the children spend with the non-resident parent;
- any child support payment;
- any aspect of parental responsibility you want included in the orders – such as welfare and development of the child.
If parties come to an agreement on parenting arrangements, a Form 11 Application for Consent Orders can be filed at the Court. If the Court considers the proposed orders fair, equitable and in the best interests of the children, orders will be made. These orders will be binding and enforceable on both parties.
If parties disagree, parties should attend mediation to try and resolve as many issues as possible. After mediation it may be the case that agreement has been reached allowing a Form 11 to be filed at Court. If mediation is not successful, an FDRP Certificate will be issued allowing parties to make an Application to the Court for Final and/or Interim Children’s Orders.
We have experience in matters involving parental responsibility, child contact and welfare, maintenance, child recovery and parenting arrangements. We can assist you in your dealings with the other party, dealing with family violence, assistance and attendance at family dispute resolution, and court appearances.
Where parties are in agreement as to how to divide their property parties can jointly apply and file at court a Form 11 Application for Consent Orders. The court will grant your proposed property split so long as the split is just and equitable.
If there is no agreement the parties must engage in written correspondence to exchange their proposed property division or engage in family dispute resolution. If these avenues do not produce results parties can then apply to the Family Court of WA for Final and/or Interim property Orders.
When determining a property settlement the court takes into account factors including but not limited to the financial and non-financial contributions of each party, contributions to the welfare of the family, whether there are children under the age of 18 years and the future needs of each party.
Be aware property settlement applications have time limits. In the case of married couples parties have 12 months from the date of their divorce to make an application. Where parties were involved in a de-facto relationship parties have 2 years from the date of separation to apply to the court.
Our services include drafting pre-actions procedure letters, attendance and assistance at family dispute resolution, property settlement negotiations, preparing and serving your court documents, super-splitting orders and court appearances.