Rights on Separation

A husband and wife have the following rights and duties before and after their separation:

Children

Parents are equally responsible for the care and upbringing of their children until the court orders otherwise. They may reach agreement about the care of the children and have orders made under the Family Law Act 1975 by consent of them both or have an agreement about residence or contact registered with a Court.

If the parents cannot decide with whom the children should live, either can apply to the court for a residence order. The parent who does not have the care of the children can apply to see them. This is called contact.

Financial Support

A spouse who cannot support themselves or the children can make an application to the court to order the other party to provide some financial support (or maintenance). Both parents are equally responsible for the financial support of children. They may reach an agreement about maintenance and then have that agreement registered under the Family Law Act or have court orders made by consent.

If the parties separated on or after 1 October 1989 then Child Support is governed by the Child Support (Assessment) Act 1989 (Cth). Assessments for child support will be determined by the Child Support Agency or the parties may settle child support by agreement and have that registered at the Child Support Agency.

Protection from Violence and Harassment

Where one party has threatened or assaulted the other party or the children, the Family Court of Australia, or a Magistrate’s Court, can make orders to restrain or stop further violence.

Property

The parties can make their own arrangements for the division of property and have that agreement approved by the court at any time before or after divorce.

Either party can apply to a court for orders for property settlement where there is no agreement between the parties. An application for property settlement must be made within 12 months of obtaining a decree absolute of divorce (or before actual divorce proceedings are instituted). If made 12 months after the decree absolute, leave seeking that the application be heard out of time must be obtained from the court before proceeding. This may be difficult in some cases and explanations must be provided for the delay.

If the party who has left cannot get their personal possessions from the house they can apply to a Magistrate’s Court or the Family Court of Australia for an order that these possessions be handed over.