Family lawyers in Melbourne.

Divorce is the legal end of a marriage. In Australia, a divorce application can be made by one party (sole) or both parties (joint) after the couple has been separated for at least 12 months. The court need only be satisfied that the marriage has broken down irretrievably and that proper arrangements have been made for any children of the marriage.

Separation does not require either party to move out of the family home — separation under one roof is recognised, but requires careful evidence about changes in living arrangements, finances and the social presentation of the relationship.

Critically, divorce is a separate step from property settlement and parenting arrangements. A property settlement should usually be finalised before or shortly after a divorce, because the 12-month limitation period for married couples runs from the date the divorce order takes effect.

Read the in-depth guides: How to apply for divorce in Australia · Divorce and the 12-month separation requirement.

Arrangements for children after separation are decided by reference to their best interests. The legislation sets out the considerations the court must apply, including the benefit of a meaningful relationship with both parents and the need to protect the child from harm. Where those considerations conflict, the need to protect the child from harm prevails.

Most arrangements are reached by agreement. Parents may record informal arrangements in a parenting plan, or formalise them as consent orders made by the court. Consent orders are enforceable as court orders. Where agreement is not possible, contested parenting proceedings begin with an obligation to attempt family dispute resolution (FDR) — except in cases involving family violence, child abuse or urgency.

Read the in-depth guides: Parenting arrangements after separation · Parental financial responsibility.

Spousal maintenance is financial support paid by one party to a former spouse or de facto partner who cannot adequately support themselves. The court applies a need-and-capacity test: the applicant must demonstrate need, and the respondent must have the capacity to pay after meeting their own reasonable needs. Maintenance can be ordered as a lump sum, periodic payments or a combination.

Spousal maintenance is distinct from child support and from property settlement, though the same set of facts often informs all three. Time limits apply — 12 months from divorce for married couples and two years from separation for de facto partners.

Read the in-depth guide: Spousal maintenance in Australia.

A binding financial agreement (BFA) is a contract under Part VIIIA (married couples) or Part VIIIAB (de facto couples) of the Family Law Act that sets out how property, financial resources and maintenance are to be dealt with if the relationship ends. BFAs can be made before, during or after a relationship.

BFAs are strictly regulated. Each party must obtain independent legal advice and the agreement must be signed in accordance with the statutory formalities. A properly drafted BFA ousts the court's general property jurisdiction. A poorly drafted BFA is routinely set aside on grounds including non-disclosure, unconscionable conduct, duress, a material change in circumstances affecting the welfare of a child, or failure to comply with the formal requirements.

We act on both the drafting and the challenging of BFAs. Pre-relationship agreements in particular need to be drafted with a long view to changes in circumstances over the years that follow. For an in-depth treatment, see our guide to Binding Financial Agreements in Australia.

The Family Law Act and the rules of the Federal Circuit and Family Court strongly encourage early settlement. Parenting matters require an attempt at family dispute resolution before a court application can be filed, subject to defined exceptions. Property matters are routinely referred to mediation, sometimes conducted by a senior barrister or retired judge, sometimes by an accredited family law mediator.

A successful mediation is usually recorded in consent orders or a binding financial agreement. Consent orders have the advantage of being enforceable as court orders and finalise the property jurisdiction between the parties.

We are an established Victorian firm with offices in Melbourne CBD and Ringwood. Our family law practice is part of a broader private client offering that includes wills and estate planning, probate and estate administration, commercial work and property law — which matters in family law more than it sounds, because separation routinely intersects with business structures, trusts, superannuation, estate planning and succession.

Clients come to us for clear advice about realistic outcomes, a calm approach to negotiation, and the willingness to litigate when litigation is the right answer. We do not run cases for their own sake. We do run them properly when they need to be run.

For broader context on how a family law settlement can affect your estate planning, see our guide to blended families and estate planning.

Do we need to be divorced before we can sort out the property settlement?

No. A property settlement can be — and usually should be — finalised before a divorce order is made. Divorce is a separate legal step that simply ends the marriage. Property and parenting matters are dealt with under different parts of the Family Law Act and can be resolved at any time after separation. There is a 12-month limitation period for married couples that runs from the date the divorce takes effect, so timing matters.

How long does it take to get divorced in Australia?

Married couples must be separated for at least 12 months before they can apply for divorce. Once the application is filed, the divorce order is usually made within about three to four months, and takes effect one month and one day after the order is made. Separation under one roof is possible but requires careful evidence.

Is the property pool always split 50/50?

No. Australian family law does not start from a presumption of equal division. The court (or the parties in negotiation) works through a four-step process: identify and value the property pool, assess the contributions of each party, consider the future needs of each party, and stand back to check that the proposed division is just and equitable. The result is usually somewhere between 50/50 and 70/30, but every case turns on its facts.

What happens to the children after separation?

The starting point is that arrangements for children are decided by reference to their best interests. The Family Law Act sets out the considerations the court must take into account, including the benefit of meaningful relationships with both parents and the need to protect the child from harm. Most parenting arrangements are resolved by agreement — recorded in a parenting plan or formalised as consent orders — without contested litigation.

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

In most respects, yes. De facto partners — including same-sex partners — have property settlement and spousal maintenance rights under the Family Law Act that are broadly equivalent to those of married couples, provided the relationship meets the statutory definition. The time limit is two years from the date of separation. Eligibility is the first question, and disputed de facto status is itself a frequent source of litigation.

What is a binding financial agreement?

A binding financial agreement (BFA) is a contract between partners — before, during or after a relationship — that sets out how property, financial resources and maintenance will be dealt with if the relationship ends. BFAs are strictly regulated. Both parties must obtain independent legal advice and the formal requirements must be met. When properly drafted, a BFA ousts the court's usual property jurisdiction. When not, BFAs are routinely set aside.

Can I get an intervention order to protect myself or my children?

Yes. A family violence intervention order (FVIO) is made by the Magistrates' Court of Victoria and can prohibit a person from committing further family violence, contacting an affected family member, attending a residence or workplace, and other protective conditions. Urgent interim orders can be made the same day. We act for both applicants and respondents and frequently advise on the interaction between FVIOs and parenting orders.

Will my matter have to go to court?

Most family law matters are resolved without contested litigation. Couples are required to make a genuine effort to resolve parenting disputes through family dispute resolution (FDR) before filing in court, except in cases involving family violence, urgency or other exceptions. Property matters are routinely referred to mediation. Where agreement is possible, settlement is recorded as consent orders, which are enforceable as court orders.

How are superannuation and businesses dealt with in a settlement?

Superannuation is treated as property in family law settlements and can be split between the parties under a superannuation splitting order. Businesses, professional practices, trusts and other commercial interests are also part of the property pool and require proper valuation. Disclosure is rigorous and the consequences of non-disclosure are serious. Cryptocurrency, foreign assets and corporate structures all need to be identified and traced.

Do I have to pay child support?

Child support in Australia is administered by Services Australia under a statutory formula that takes into account both parents' incomes, the care arrangements and the costs of children. The formula produces an assessment that can be enforced. Parents can also enter binding or limited child support agreements that depart from the formula in defined ways. We advise on assessments, departures, agreements and enforcement.