We have prepared some short answers to some commonly asked questions for your reference. Please however be aware that the information provided here is for your general information and in no way is intended to be a substitute for legal advice. If you have any questions concerning your specific circumstances you should consult a lawyer.
- My partner and I have separated what do I do now?
- How long do I and my spouse need to be separated before I can apply for a divorce?
- Is there a time limit after separation within which you can apply for property settlement?
- Do I need a new Will after I am separated or divorced?
- How much will court proceedings cost?
- What is an accredited Family Law Specialist
My partner and I have separated what do I do now?
The most important thing to do is to try and put your affairs in order between you. This includes the arrangements for your children, property division and maintenance for your spouse and children, if applicable.
You should be aware of joint accounts you may hold with your partner, such as bank accounts, credit cards and the like. If you are concerned about your partner continuing to operate those accounts you should contact your bank and arrange to have access to the accounts changed.
There is nothing preventing you and your spouse from reaching agreement between yourselves, without the assistance of lawyers. However, you should be aware that any informal agreement may be contested by the other party at some future time, and simply telling the Courts that they did not have the benefit of legal advice in the first place may be enough to re-examine your agreement.
If you reach agreement between yourselves, you should consider formalising the agreement by registering it with the Court, or having consent orders made through the Court. Your solicitor can explain this process to you and set out the options that are most appropriate in your circumstances.
Even if you intend to resolve your matter by negotiation, a sensible course is to take some form of legal advice. A solicitor can give you advice as to what is a fair position, assist you with any documentation, conduct Court proceedings on your behalf or arrange an informal conference if required.
Remember, if your agreement is not considered "fair", or one or both of you did not receive legal advice, the Courts may agree to re-examine the agreement at a later time. Child agreements can be varied at any time provided you can establish a changes in circumstances.
How long do I and my spouse need to be separated before I can apply for a divorce?
You have to be separated for a period of not less than 12 months before you can apply for a divorce. The only ground for divorce pursuant to the Family Law Act is irretrievable breakdown of marriage which is shown by a separation of 12 months - so regardless of what happened to cause you to separate, you must be separated for a period of not less than 12 months before you can apply for a divorce. You can aggregate shorter periods of separation, however you will need to speak to your solicitor about this.
Is there a time limit after separation within which you can apply for property settlement?
There is no time limit after separation to apply for property settlement, but it is usually in your best interests to sort these matters out as soon as possible. There is however a time limit after you are divorced - if you have not already done so you must apply for property settlement and/or your own maintenance within 12 months of the date of your divorce.
If you do not apply 12 months of the date of your divorce and decide that you want to proceed, you will first need to obtain the leave of the Court to bring such an application. If you are in this position you should consult a solicitor experienced in family law as soon as possible.
Do I need a new Will after I am separated or divorced?
We strongly recommend that you make a new will after your separation. The fact of separation (as distinct from divorce), does not "cancel" any will you may currently have, nor does it alter any claim your spouse may have to your estate. If you are in this position and require assistance, you should consult a solicitor.
Marriage and divorce will "cancel" any will you have previously made.
How much will court proceedings cost?
This is a common question and regrettably difficult to answer. Family law matters are charged on an item-by-item basis and it is extremely difficult to provide an accurate "guesstimate" of what the costs are likely to be. A case (and therefore the cost) is likely to be affected by a number of factors that may not be obvious at the beginning, including:
- the complexity of the matter
- the conduct of the other party
- who is involved (ie whether you need a barrister for Court)
- whether your matter settles by negotiation or proceeds to trial.
You should discuss costs with your solicitor at the first appointment. Your solicitor should be able to provide you with, or send to you, a list of charges or a letter setting out this information. If you do not understand any aspect of the costs information you receive, you should seek independent legal advice before agreeing to your solicitor's costs. You can also request an itemised account from your solicitor at any time during the proceedings.
You should not expect or rely upon the Court ordering the other party to pay your costs. In family law, you are in principle responsible for your own lawyer's costs and disbursements (disbursements are actual "out of pocket" expenses). In only limited circumstances you may be able to obtain a costs order against the other party.
Even if a costs order is made, this usually only covers a portion of your costs.
What is an accredited Family Law Specialist
An Accredited Family Law Specialist is a solicitor who is accredited by the Law Society of Western Australia. Solicitors cannot use the words "accredited" or "specialist" to describe themselves without this recognition.
To become an accredited family law specialist, a solicitor must:
- have practised as a solicitor for at least five years
- have a substantive part of their practice made up of family law
- obtain the written recommendation of three independent solicitors who can attest to their character and professionalism
- pass an examination assessing their knowledge of the law, practical application and client skills
- maintain a program of continuing legal education.
We at Paterson and Dowding have six accredited Family Law Specialists.