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Questions

Pigdon Norgate specialise in family law, including matters relating to same sex couples, de facto couples, child support, separation and divorce.
We have put together questions we commonly hear about Australian Family Law below. If we have not listed your particular question or you need further advice on any aspect of family law, please contact us.

Divorce & Separation

How do I apply for a Divorce?

  • Australia is a “no fault” jurisdiction. As long as there has been an “irretrievable break down of the marriage”, you can file for divorce (that is, make an application for divorce ). This means that you do not need to give the Court any reason for why you have decided to separate.
  • You can make the application for divorce on your own or you can make the application jointly with your spouse.
  • You must have been separated for at least 12 months before you can make the application for divorce.
  • You file the Application for Divorce in the Federal Circuit Court of Australia.
  • The Family Law Courts has prepared an Application for Divorce Kit:
  • Federal Circuit Court – Application for Divorce Kit
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Separation under one roof – can I still apply for a divorce even if we have been living in the same home?

  • You can make an Application for Divorce even if you lived in the same house during the 12 months of separation.
  • However, you will need to prove to the Court that you were in fact living separately in the same house during this time.  This is done by filing a affdavit from both you and your spouse or from you and another person who can give evidence that you lived separately while living in the same home.
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What happens after I file my divorce application?

  • At the time of filing your divorce application, a date will be allocated for the hearing of you your application.
  • If you have filed the application on your own, you must then arrange for the application to be personally served on your spouse. You cannot give the application to your spouse  yourself. You must arrange for someone else to deliver the application to your spouse.
  • If you have children under 18 years of age, one of you will need to attend Court for the hearing.  Otherwise it will be heard in Chambers, that is, neither of you will need to actually appear in Court and you will be notified that the divorce order was made by post.
  • The divorce order becomes final one month and one day after it is made by the Court.
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What if we have children?

  • If there are children under the age of 18, one of the parties must be present at the hearing. If there are no children under the age of 18, the application will be heard in chambers. This means that neither party needs to attend the hearing. You will receive notification of the outcome of the application by mail.
  • If there are children under the age of 18, the Court must also be satisfied that proper arrangements have been made for the welfare of any children before it grants an order. The divorce application must therefore include details as to the housing, education, health, financial support and other arrangements for the children.
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Do I need to be divorced to have a property settlement?

  • You do not need to be divorced to have a property settlement.  Property settlement is separate from divorce.
  • However, once you are divorced (that is once the divorce is final, you must make an application for a property settlement or spousal maintenance within 12 months from the day the divorce became final.
  • Pigdon Norgate Family Lawyers is able to assist you with all aspects of your divorce.  Please do not hesitate to contact us if you would like to discuss your divorce further.
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De Facto Relationships & Same Sex Relationships

Do de facto couples have the same rights as married couples?

  • In all states and territories except for Western Australia, a de facto couple who separated after 1 March 2009 (and 1 July 2010 for South Australia) has the same rights as married couples under the Family Law Act 1979.  This is for both financial and parenting matters, as well as superannuation splitting and maintenance.
  • The Court takes into account many factors when deciding if a relationship is a de facto relationship and this may be different for each individual couple.  The Court will look at factors including: the lenght of the relationship, if you have children and the financial circumstances such as purchasing property together and one party supporting the other.
  • In New South Wales, if you separated prior to 1 March 2009 the Property (Relationships) Act 1984 will apply.  There is a significant difference between the Property (Relationships) Act 1984 and the Family Law Act.
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Do same sex couples have the same rights?

  • In all states and territories but WA, same sex couples have the same rights as married couples and de facto couples.
  • The Family Law Act 1979 states that a de facto relationship can exist between two people of different sexes and between two people of the same sex.  Same sex couples therefore are considered to be in a de facto relationship for the purposes of property, parenting, maintenance and superannuation splitting.
  • At Pigdon Norgate Family Lawyers, we are able to assist you with all aspects of your de facto relationship.  Please do not hesitate to contact us if you would like to discuss any questions you may have about your relationship.
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Child Support

How is Child Support Calculated?

  • Child Support is usually calculated using formulas set out in the Child Support (Assessment) Act 1989.  These formulas depend on differing circumstances, such as how many children there are and whether a non-parent carer is involved.
  • The basic formula takes into account a number of factors including:
  • – Each parent’s taxable income;
  • – The time each child lives with each parent; and
  • – The age of the children.
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Do I need to go through the Child Support Agency?

  • The Child Support Agency applies the basic formaul and makes an Assessment .  The Agency will only issue an assessment if requested by one or more of the parents.
  • You do not always need to obtain an Assessment from the Child Support Agency, parents can make their own private arrangements including entering into child support agreements.
  • You can also make an Application to the Family Law Courts in certain circumstances.
  • Please contact us if you would like to discuss child support including to prepare a Child Support Agreement
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Wills

Do I need to change my Will if we divorce or separate?

  • As soon as you separate you should review your Will. If you do not have a Will we suggest you make one as soon as possible.
  • Once you are divorced, any reference to your former spouse, whether as an executor or beneficiary, is automatically void.  It is therefore advisable to update your Will, or create a new one, to ensure that a valid Will is in place and to protect your Estate.
  • However, if you are only separated, your Will does not automatically become invalid and your former partner may still have an entitlement.  In these circumstances, it is advisable to ensure that your Will reflects your current wishes.
  • It is very important to have a Will which reflects your current intentions, such as who is to receive the assets of your Estate and who is entrusted with the role of administering your Estate.  If you do not have a Will, we recommend that you speak with a Wills and Probate specialist. Please contact us if you would like us to make recommendations.
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