Family Law
Family Law includes legal matters about relationships, children, and property. Generally, family law matters can be separated into four areas: parenting, separation, divorce, and property.
TEWLS has produced a series of free fact sheets about these areas of family law to provide information and guidance to women about the law. You can find these in Factsheets & Other Resources.
TEWLS can also provide advice and limited assistance in child protection matters (matters involving the Department of Territory Families, Housing and Communities). For more information, please Contact Us.
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Parenting
If you and your ex-partner have any children under the age of 18, including non-biological children, it is likely you will need to make arrangements for their care, welfare, and development following your separation.
What are parenting arrangements?
Parenting arrangements are arrangements for the care of children. They can include arrangements about where children will live, how children will spend time with people, as well as restrictions to protect children, such as arrangements restricting drug and alcohol use.
Parenting arrangements are commonly misunderstood as ‘child custody’, which emphasises the rights of the parents to the child. Instead, in Australia, the focus is on the rights of the child, with parents and/or guardians having parental responsibility instead of rights to their child/children. When making parenting arrangements, the primary consideration must be the best interests of the child.
Under new changes to the Family Law Act 1975 (Cth) that come into effect May 2024, the range of factors that must be considered in deciding what is in the ‘best interests of the child’, include:
- The safety of the child and any caregivers of the child;
- Any views of the child;
- The developmental, psychological, and cultural needs of the child;
- The capacity of each parent to provide for the child’s needs;
- The benefit to the child of being able to have a relationship with their parents or other significant people in their lives; and
- Anything else that is relevant to the circumstances of the child.
For Aboriginal and Torres Strait Islander children, there is an additional consideration of the child’s right to their Aboriginal and Torres Strait Islander culture. This includes consideration of the child having the opportunity to connect with members of their family, and with their community, culture, country, and language.
How are parenting arrangements decided?
You can make parenting arrangements in lots of different ways – there is no right way.
Some examples of parenting arrangements include:
- Verbal agreements
- Written agreements (called ‘parenting plans’)
- Verbal or written agreements made through mediation (including parenting plans)
- Parenting orders made by applying to the Federal Circuit and Family Court of Australia (the Court).
You can make parenting arrangements as a parent, and as a person involved in the parenting of a child, including an aunt, grandparent, or guardian.
You can learn more about separation by reading our factsheet here.
When should I get help with parenting arrangements?
You might want to seek legal help if you answer ‘yes’ to any of the below questions:
- Are you considering separation and need help understanding your options for parenting arrangements?
- Do you have problems about parenting arrangements?
- Do you need help making decisions about your children?
- Do you have concerns about your children?
- Do you want to take your children interstate or overseas without your partner?
Property
When you separate, you and your ex-partner will likely need to discuss if and how you will divide your finances and property – this includes your assets and your debts.
What is property?
In family law, ‘property’ includes all assets and liabilities of a relationship, including things in both person’s names and in individual names. Property includes things like real estate, money in banks, superannuation, motor vehicles, mortgages, and credit card debts. When determining the property of a relationship, it does not matter who owns what – everything is counted.
What are property arrangements?
Property arrangements are arrangements for how your finances and property will be divided at the end of your relationship. You do not have to be married to be able to make property arrangements – de facto couples can also make property arrangements.
It is also important to know that there is no set division of property under the Family Law Act 1975 (Cth) – every relationship is different. A division of property is made according to the parties’ circumstances, including the length of the relationship, contributions by the parties during the relationship, and each person’s future needs.
How can I make property arrangements?
You can make property arrangements informally, or through formal ways such as:
- Consent Orders
- A Financial Agreement (often referred to as “binding financial agreements”)
- An application to the Court for property orders.
Often, property arrangements can be made through mediation, and you will not have to go to Court.
When can I make property arrangements?
You can make property arrangements at any time during or after your relationship, but it is usually best to make arrangements shortly after separation.
However, if you need the Federal Circuit and Family Court of Australia (the Court) to make a decision about property, there are important time limits to keep in mind:
- De facto couples – you must make an application to the Court within two (2) years of your separation; and
- Married couples – you must make an application to the Court within 12 months of your divorce being finalised.
You should seek legal advice about the consequences if you do not follow these time limits, which can include the Court not accepting your application for property orders.
To learn more about property arrangements, you can read our Family Law factsheet on Property Arrangements here.
When should I get help with property?
You might want to seek legal help if you answer ‘yes’ to any of the below questions:
- Do you want to sort out dividing the property with your partner?
- Do you want to learn more about what property you might be entitled to after separation?
- Do you want help deciding whether a proposed property settlement is fair?
You should seek urgent legal advice if you want help with property division and you are outside the time limit set by the Court.
Separation & divorce
Separation is the process of ending a relationship, including a marriage, de facto relationship, or casual relationship.
If you are married and have separated from your spouse, you may be considering an application for divorce – the legal process of ending a marriage.
Who can separate?
Anyone in a relationship can choose to separate or end a relationship. This includes any couple, including de facto couples, married couples, and any other relationship.
Separation happens when one person in the relationship decides to separate, acts on that decision, and tells the other person. The other person doesn’t have to agree to the separation.
Often, the only circumstances where people need to tell an external party or Government Department about their separation is if one or both people are receiving Government benefits, such as Centrelink benefits, or if one or both people are in Australia on a visa. If you are intending on separating or have separated and there is a visa or visas involved, you should seek legal advice.
To learn more about separation, you can read our Family Law factsheet on Separation here.
Who can get a divorce?
To apply for a divorce, the Family Law Act 1975 (Cth)states that the following grounds of eligibility must be met:
- Citizenship and/or residency – you or your former partner must be an Australian citizen (by descent or grant) or have been living in Australia for the past 12 months;
- Valid marriage – you must prove that you are married by providing a Marriage Certificate; and
- Marriage has broken down – you must prove that there is no reasonable likelihood that you will get back together.
If you were married overseas or if your marriage certificate is not in English, you should seek legal advice before applying for divorce.
To learn more about divorce, you can read our Family Law factsheet on Divorce here.
How can I get a divorce?
To get a divorce, you need to apply to the Federal Circuit and Family Court of Australia (the Court) for a divorce order. All applications for divorce are now received online through the Commonwealth Courts Portal, with applications able to be made solely (by one person) or by consent (by both people).
Generally, applications for divorce take about three (3) months to be processed and will end after the Court issues your divorce order.
When should I get help with separation and divorce?
You might want to seek legal help if you answer ‘yes’ to any of the below questions:
- Do you want to separate from your partner, but don’t know what to do next?
- Do you want to apply for a divorce from your ex-partner?
- Have you received an application for divorce from your ex-partner and need legal help understanding it?
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