Separation can be a complicated and difficult process. Often, the parties to a separation are left trying to reach an agreement regarding property, children, or both.

Separation occurs when a married couple, de facto couple, or same sex couple ends their relationship on a final basis. It is different from divorce, in that all that is required for separation is that the decision to end the relationship is communicated to the other party.

A divorce is a legal declaration that a marriage is over. In order to be eligible to make an Application for Divorce, you must be able to prove that:

  • You and your former spouse have been separated for a period of at least 12 months.
  • If you have been married for less than two years, that you have attended upon a marriage counsellor and have obtained a certificate of counselling.
  • If you have been separated under the one roof, you were living as a separated couple.
  • If you have children who are under 18 years, you have considered and made arrangements regarding the care of the children.

Making decisions about parenting arrangements after separation can be a very difficult process. At Coutts, we have a team who are able to guide you through this process and provide you with expert representation throughout this process.

Under the Family Law Act, all couples are required to attempt to resolve parenting matters outside of court. The Act requires that all parties attend upon mediation with a Family Dispute Resolution service before they can go to court. There are some exceptions to this rule, particularly if there are concerns for a persons safety. It is also very important to note that the Family Law Act says that all decisions that are made about children must be to uphold the best interests of the child.

Under the Family Law Act, lawyers and judicial officers need to look at lots of information prior to assessing what is right for children, however, the main priority is always what is in the children’s best interests.

When determining what is in a child’s best interests, the following things will generally be assessed:

  • Wishes of the children (and weighting those wishes accordingly with regard to the child’s age and understanding).
  • The benefit of the children having a meaningful relationship with both parents.
  • The effect of any change in living arrangements on the children.
  • Any family violence in either household.
  • The lifestyle, maturity and background of the children and the children’s parents.
  • Each parent’s capacity to facilitate a meaningful relationship between the children and the other parent.
  • The practical difficulty associated with such time.

After a couple separates, they often have to make decisions about what is to happen to any property that is between them. This includes things like cars, houses, bank accounts, superannuation, and even debts.

If you have reached agreement on your own, then we are able to help you draft the necessary papers to formalise the agreement. In these cases, only one of you will need to see us.

In most cases, couples aren’t able to reach an agreement on their own about what to do with any property that is between them. If there is no immediate agreement, Coutts can assist you in starting the negotiation process. 

Under the Family Law Act, parties must make genuine efforts to resolve matters outside of the court process. At Coutts, we do all that we can to guide you through the settlement process to achieve an out of court resolution. Should your matter be before court, Coutts can assist too.