Information Centre · Family Law
Family Law in Australia: A Complete Guide for Separating Couples
An overview of Australian family law for separating married and de facto couples — separation, divorce, parenting, child support, property and maintenance under the Family Law Act 1975 (Cth) as amended. General information only — not legal advice.
Key points
- Separation under the Family Law Act 1975 (Cth) is a question of fact — at least one party must communicate the intention to end the relationship and the nature of the relationship must change — and can occur under one roof.
- Divorce is available after twelve months and one day of separation on a no-fault basis; married applicants generally have twelve months from divorce becoming final to commence property or spousal-maintenance proceedings (section 44(3)), and de facto applicants generally have two years from separation (section 44(5)); leave to apply out of time is governed by section 44(4) or (6).
- Property adjustment under section 79 (married) or section 90SM (de facto) — as amended with effect from 10 June 2025 — considers existing legal and equitable rights, interests and liabilities, contributions, current and future circumstances of each party (including the economic effect of family violence where the evidence supports it), and must be just and equitable; there is no fixed formula or step-based test and no presumption of equal division.
- Superannuation may be split under Part VIIIB (or the de facto equivalent) by order or by binding financial agreement, subject to procedural fairness to the trustee, correct drafting and current fund requirements; defined-benefit and self-managed funds warrant specialist advice.
- Parenting decisions are governed by the best-interests-of-the-child test in the section 60CC framework as restructured with effect from 6 May 2024; there is no presumption of equal shared parental responsibility and no entitlement to equal time, and section 60I generally requires family dispute resolution before contested parenting proceedings unless a statutory exception applies.
- Separation does not revoke gifts to a spouse under a Will or update powers of attorney and superannuation nominations — estate-planning documents should be reviewed alongside the family-law matter.
Separation is a legally significant event that interacts with parenting, child support, property, superannuation, taxation, estate planning and protective law. Australian family law is principally governed by the Family Law Act 1975 (Cth), together with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and, for child support, the Child Support (Assessment) Act 1989 (Cth). This guide provides an overview only. Each topic is fact-specific and requires tailored advice.
Separation
Separation is a question of fact under the Family Law Act 1975 (Cth). It requires at least one party to communicate an intention to end the relationship and a change in the nature of the relationship. Separation under one roof is expressly recognised by section 49(2) and is proved on the evidence in the particular case. The date of separation may affect eligibility for divorce, time limits for property and maintenance claims, and evidentiary questions in property proceedings; it does not automatically fix a property valuation date or displace the Court's discretion.
Divorce
An application for divorce may be filed after 12 months and one day of separation (section 48). Applications may be sole or joint. Where the marriage is less than two years old, the applicant must generally attend counselling or seek the Court's leave (section 44(1B)). Where the parties lived under one roof during separation, corroborating evidence is required. The Court considers arrangements for any children of the marriage under 18 before making the divorce order. Service and attendance requirements are set out in current Court guidance. A divorce order ends the marriage; it does not resolve property, parenting, spousal maintenance or child support and it starts a strict 12-month time limit for property and spousal maintenance applications (section 44(3)).
De Facto Relationships
A de facto relationship is defined in section 4AA by reference to a range of circumstances and is not equivalent to a fixed period of cohabitation. Property and maintenance relief under Part VIIIAB requires a section 90SB gateway to be met — a total period of the relationship of at least two years, a child of the relationship, substantial contributions in circumstances in which non-recognition would result in serious injustice, or registration under a State or Territory Act. A geographical connection to a participating jurisdiction is required (section 39A(5)). Western Australian de facto property matters are governed by State legislation and are not part of the federal Part VIIIAB regime.
Property Settlement
Since 10 June 2025 the property settlement discretion is structured by amended sections 79 (married) and 90SM (de facto) of the Family Law Act 1975 (Cth), together with the associated definitions and provisions inserted by the Family Law Amendment Act 2024 (Cth). The Court considers the existing legal and equitable rights, interests and liabilities of the parties; the contributions of each party (financial, non-financial, homemaker and parenting); the current and future circumstances of each party, including the economic effect of any family violence where the evidence supports it; and whether it is just and equitable in the circumstances to make any order altering interests. There is no presumption of equal division and no fixed percentage. Outcomes depend on the evidence and the exercise of a broad discretion.
Superannuation may be split under Part VIIIB (and the de facto equivalent) by a Court order or a superannuation agreement under a BFA, subject to the trustee's information and procedural requirements. Defined-benefit interests and self-managed superannuation funds require specialist advice. Companies, trusts, partnerships and other entities are addressed on their documents, control and evidence; assets in another name or entity are not automatically the property of a spouse.
Parenting Arrangements
The paramount consideration is the best interests of the child. Since 6 May 2024, the presumption of equal shared parental responsibility has been repealed and section 60CC has been restructured. The Court applies the general considerations in section 60CC(2) — safety; the child's views; the child's developmental, psychological, emotional and cultural needs; the capacity of each proposed carer to meet those needs; the benefit to the child of a relationship with each parent and other significant people, where safe; and any history of family violence, abuse or neglect — together with the additional considerations for Aboriginal and Torres Strait Islander children in section 60CC(3). There is no entitlement to equal time. Decision-making about major long-term issues is addressed under sections 61CA and 61D.
Family Dispute Resolution is generally a precondition to filing a contested parenting application under section 60I, subject to exceptions including family violence, child abuse, urgency, incapacity and consent applications. Final parenting orders can be reconsidered under section 65DAAA where the current statutory test is satisfied.
Child Support and Maintenance
Child support is principally administered by Services Australia under the Child Support (Assessment) Act 1989 (Cth). The administrative formula uses each parent's adjusted taxable income, the percentage of nights of care and the statutory costs-of-children table. Parents can enter a limited or binding child support agreement. Ordinary parenting or property consent orders and BFAs cannot substitute for the statutory child-support scheme.
Spousal and de facto maintenance is a distinct entitlement under Parts VIII and VIIIAB. It depends on need and capacity to pay and is decided on the evidence.
Binding Financial Agreements
A BFA is a contract under Part VIIIA (married) or Part VIIIAB (de facto) dealing with property, financial resources and maintenance. To be binding, each party must receive independent legal advice from a legal practitioner about the effect of the agreement on that party's rights and the advantages and disadvantages of entering the agreement at the time the advice is provided, and the signed-statement and copy requirements in section 90G or section 90UJ must be satisfied. Formal defects do not automatically make an agreement non-binding: sections 90G(1A) and 90UJ(1A) provide a curative pathway where it is just and equitable to declare the agreement binding. Sections 90K and 90UM set out set-aside grounds. A BFA does not determine parenting or displace the statutory child-support scheme.
Disclosure, Family Violence and Related Matters
Full and frank financial disclosure is a duty in property proceedings and pre-action processes. Since 10 June 2025 the duty is expressly stated in section 71B of the Family Law Act 1975 (Cth), alongside Chapter 6 of the Rules. Protective measures for family violence are available under the Family Violence Protection Act 2008 (Vic) in Victoria and under equivalent State and Territory legislation elsewhere. Injunctions under section 114 (married) or section 90SS (de facto) may be sought in appropriate cases; whether any particular protective step is appropriate depends on the facts and the evidence. Estate-planning documents, powers of attorney and superannuation nominations should be reviewed after separation and after divorce.
Dispute Resolution and Cost
Family-law disputes may be resolved by negotiation, mediation, Family Dispute Resolution, collaborative practice, arbitration (for property) or contested Court proceedings. Costs depend on the facts, the issues, the level of dispute and the conduct of the parties. Early advice supports proportionate decisions and avoids irreversible steps.
Frequently Asked Questions
When are you separated under Australian family law?
Separation is a question of fact under the Family Law Act 1975 (Cth). It requires at least one party to communicate an intention to end the relationship and a change in the nature of the relationship. Separation does not require either party to leave the home; section 49(2) recognises separation under one roof. The date of separation is often disputed and is proved by contemporaneous conduct and communications, evaluated on the evidence in the particular case.
How long after separation can I apply for divorce?
A divorce application can be filed once the parties have been separated for at least 12 months and one day (section 48). The application may be made solely or jointly. Where the marriage is less than two years old, the applicant must generally attend counselling or seek the Court's leave (section 44(1B)). Where the parties lived under one roof during separation, additional evidence is required. A divorce order ends the marriage; it does not itself resolve property, parenting, spousal maintenance or child support.
How are de facto couples treated?
De facto couples (including same-sex couples) may seek property and maintenance relief under Part VIIIAB where a section 90SB gateway is met — a total period of the relationship of at least two years, a child of the relationship, substantial contributions in circumstances in which non-recognition would result in serious injustice, or registration under a State or Territory Act. Applications must generally be filed within two years of the end of the de facto relationship (section 44(5)); leave to apply out of time may be granted under section 44(6). Section 39A(5) requires a geographical connection to a participating jurisdiction; Western Australian de facto property matters are governed by State legislation and are not part of the federal Part VIIIAB regime.
How is property divided after separation?
Since 10 June 2025, section 79 (married) and section 90SM (de facto) require the Court to identify the existing legal and equitable rights, interests and liabilities of the parties; consider the contributions of each party; consider the current and future circumstances of each party (including the economic effect of any family violence, where the evidence supports it); and be satisfied that any order altering interests is just and equitable in the circumstances. There is no presumption of equal division and no fixed percentage. Outcomes depend on the evidence and the exercise of a broad discretion.
How does the Court decide parenting matters?
The paramount consideration is the best interests of the child. Following the Family Law Amendment Act 2023 (Cth), which commenced on 6 May 2024, the presumption of equal shared parental responsibility has been repealed and the section 60CC framework has been restructured. The Court applies the general considerations in section 60CC(2) — including safety, the child's views, the child's developmental, psychological, emotional and cultural needs, the capacity of each proposed carer to meet those needs, the benefit to the child of a relationship with each parent and other significant people (where safe), and family violence or abuse — together with the additional considerations for Aboriginal and Torres Strait Islander children in section 60CC(3). Decision-making about major long-term issues is addressed under sections 61CA and 61D.
Do I have to attend mediation before going to Court?
For parenting matters, section 60I generally requires a genuine attempt at Family Dispute Resolution with a registered FDR practitioner before filing, unless a statutory exception applies (including family violence, child abuse, urgency, incapacity or the making of consent orders). A section 60I certificate is generally required to file contested parenting proceedings; it is not required to file a joint application for consent orders. For property matters, the pre-action procedures under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 require a genuine attempt at dispute resolution before proceedings are commenced, subject to exceptions.
How is child support calculated?
Child support is principally administered by Services Australia under the Child Support (Assessment) Act 1989 (Cth). The administrative formula uses each parent's adjusted taxable income, the percentage of nights of care and the statutory costs-of-children table. Parents can enter a limited or binding child support agreement, and specified departures are available through change-of-assessment or Court proceedings. Ordinary consent orders and BFAs cannot substitute for the statutory scheme.
What is a Binding Financial Agreement (BFA) and how does it fit in?
A BFA is a contract under Part VIIIA (married) or Part VIIIAB (de facto) that deals with property, financial resources and maintenance. To be binding, each party must receive independent legal advice from a legal practitioner about the effect of the agreement on that party's rights and the advantages and disadvantages of making the agreement at the time the advice is provided, and the signed-statement and copy requirements in section 90G or section 90UJ must be met. A formal defect does not automatically make an agreement non-binding: sections 90G(1A) and 90UJ(1A) allow the Court to declare an agreement binding despite non-compliance where it is just and equitable to do so. Sections 90K and 90UM set out grounds on which an agreement may be set aside.
What time limits apply to property and maintenance claims?
Married applicants generally have 12 months from the day the divorce becomes final to commence property or spousal maintenance proceedings (section 44(3)); leave to apply out of time is governed by section 44(4). De facto applicants generally have two years from the end of the relationship (section 44(5)); leave is governed by section 44(6). Time limits do not run against parenting applications, though delay is relevant to best-interests assessments.
How does family violence affect a family law matter?
Family violence is a substantive consideration in parenting matters under section 60CC and, since 10 June 2025, is expressly relevant to the property discretion where the evidence supports it. Protective steps in Victoria include family violence intervention orders under the Family Violence Protection Act 2008 (Vic) and safety-planning measures. Injunctions under section 114 (married) or section 90SS (de facto) may be sought in appropriate cases; whether any particular protective step is appropriate depends on the facts, the evidence and the risk.
Should I update my Will after separation?
Yes. In Victoria, separation does not revoke gifts to a former spouse under the Wills Act 1997 (Vic); divorce revokes certain provisions. Powers of attorney, superannuation binding nominations and life-insurance nominations are not automatically affected by separation or divorce. These documents should be reviewed promptly in coordination with the family-law matter.
When should I obtain family-law advice?
As early as possible. Early advice preserves procedural options, supports informed decisions about residence, finances, children and communication, and avoids irreversible steps that can prejudice a later settlement or parenting outcome.
How Parke Lawyers Can Help
Parke Lawyers has a substantial family-law practice. We act for separating couples across Victoria on divorce, parenting, property and maintenance, and coordinate with our Wills & Estate Planning and Estate Litigation & TFM Claims teams where an estate or superannuation issue overlaps with the family-law matter. Separating? Speak with a family lawyer early so the applicable framework, immediate risks and next steps can be identified.
Family Law
Separating? Speak with a family lawyer.
We advise separating couples across Victoria on divorce, parenting, property, superannuation, BFAs and related matters.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.