Recently Separated?

So, you have separated and have no idea what to do next?

A good place to start is to think about what action you might need to take to protect your interests. There is an article in our blog that sets out some practical tips about protecting your interests.

We encourage people to sort through their issues amicably and reach a fair agreement if they can. This is generally the best way to proceed (if possible) saving time, money and stress. If you can reach agreement, the terms of your agreement can be set out in consent orders (there is a blog article on these), a binding financial agreement or even a parenting plan. All off these methods have differing benefits and potential pitfalls; but generally, one of the methods will suit most people.

If you can’t agree, then you may need to seek help from a dispute resolution practitioner (such as a mediator) or lawyer who may be able to help identify the issues between the parties, explore opportunities for sensible compromise and (hopefully!) resolve your matter by one of the methods mentioned above.

Where there are serious differences between the parties or if one party refuses to discuss or negotiate a settlement, you may need to turn to the Family Court. We suggest you get advice about your options and procedural matters if this applies to you. Advice can be obtained from a lawyer (we offer a free initial consultation!), Legal Aid and Community Legal Centres.

If you are married and have been separated for at least 12 months and one day, you may apply for a divorce. A divorce application can be either joint (again, requires the cooperation of your former partner) or sole (no cooperation needed, but some extra procedural steps.

However you apply, there is (at the time of writing) a $900 filing fee charged by the Family Court. This can be reduced to $300 in certain circumstances if the applicant (for sole applications) or both applicants (for joint applications) meet the criteria.

For a joint application, there is no need to serve the application as both parties sign and are aware of the application.

For a sole application, there is the requirement that the application be served on the other party (and proof of service is required for the application to proceed).

Once the application has been filed, the matter is allocated a hearing date, although depending on your specific circumstances, you may not need to attend the hearing. However, if you make a sole application and have children under 18 you (or your lawyer) will be required to attend (this is to satisfy the court that proper arrangements are in place for any children under 18).

An important point to remember about divorce is that, whilst you can finalise a property settlement, parenting issues or a divorce in any order (and independently of each other), there is a 12 month time limit (from the date of your divorce) on commencing proceedings for a property settlement or spousal maintenance if you haven’t already done so.

Accordingly, we strongly recommend parties keep this time limit in mind when filing for divorce.

The information in this article is general in nature and is not, and should not be relied upon as, legal advice. You should obtain advice specific to your circumstances from a lawyer, Legal Aid WA or a community legal centre.

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