Family Law and Divorce

The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation.

Commonwealth law is law that applies across all of Australia. The Commonwealth family law system includes all of the courts and services that use Commonwealth family law. This system sets out different ways for family arrangements to be sorted out if there are relationship problems or if you have separated.

The main law on families, children and property disputes is set out in the Family Law Act 1975. Commonwealth family law covers all children, if their parents are married or not, but not all property disputes.

Western Australia has its own Family Court Act 1997. Its family law and court processes are similar to the rest of Australia.

The law on child support is also set out in the Child Support Assessment Act 1989 and its regulations.

Children Matters
The main goal of Commonwealth family law is to encourage parents to try to agree on arrangements for children and to sort out any disagreements away from the court if possible.

The law looks at:

1. The best interests of the children
2. Parents' responsibilities.

When the court makes a parenting order, the starting point is the court assuming that parents have equal shared responsibility for children after separation except where there is family violence or abuse.

The law balances the need for children to have a meaningful relationship with each of their parents and others who are important in their lives with their need to be protected from physical and psychological harm, which includes being neglected or seeing family violence.

Parents must try to sort out their differences and agree on arrangements for children before they apply to court. Parents can use the dispute resolution services provided at Legal Aid Queensland, a Family Relationship Centre or other family dispute resolution service to help them work out arrangements. There are exceptions to this rule, including where there is family violence or child abuse.

The law covers issues such as arrangements for where children live, who they may visit and communicate with and who is financially responsible for their care.

Spousal & Property Dispute
The law also covers property disputes, spousal maintenance and divorce. For property, the court looks at the contributions made and the future needs of each person involved.

If you were married and you want the court to make an order you must apply for a property settlement and/or spousal maintenance within 12 months of your divorce being made final.

In the case of de facto couples who separated after 1 March 2009 and who are making an application for a property settlement under the new laws, parties must apply to one of the Family Law Courts within 2 years of the end of their de facto relationship. In special circumstances you can apply to the court for a property settlement if you are 'out of time'.

This article provides basic information only and is not a substitute for a professional or legal advice. If you are likely to be involved in court proceedings or legal action, you should get advice from a family law lawyer.