Family Lawyers Melbourne

Frequently asked questions.

Plain-English answers to the questions we are asked most often by Melbourne clients.

When can I apply for divorce in Australia?

You can apply for divorce in Australia once you and your spouse have been separated for at least 12 months and there is no reasonable likelihood of resuming the relationship. The Federal Circuit and Family Court of Australia requires evidence of that separation period, and at least one of the parties must be an Australian citizen, regard Australia as home, or have lived in Australia for the 12 months immediately before filing.

Do I need to be divorced before resolving property matters?

No. Property settlement and parenting matters can — and usually should — be resolved before applying for divorce. In fact, once a divorce order takes effect, you have only 12 months to commence property or spousal maintenance proceedings, so it is important to obtain advice before that limitation period starts to run.

What is separation under one roof?

Separation under one roof is where a couple is legally separated but continues to live in the same home — usually because of children, finances or housing. The court will require evidence that the relationship has ended, including changes to finances, sleeping arrangements, social activities and communications with family and friends. An independent witness affidavit is typically required.

How are parenting arrangements decided?

Parenting arrangements are decided by reference to the best interests of the child, which is the paramount consideration under the Family Law Act 1975 (Cth). Most arrangements are agreed between parents, recorded in a parenting plan or formalised by consent orders. Where agreement is not possible, the court can make parenting orders following family dispute resolution.

How is property divided after separation?

There is no automatic 50/50 split. The court applies a structured process: identify and value the asset and liability pool, assess each party's financial and non-financial contributions, consider future needs (such as care of children, age, health and earning capacity), and arrive at an outcome that is just and equitable in all the circumstances.

Can superannuation be split in a family law settlement?

Yes. Superannuation is treated as property for family law purposes and can be split between parties as part of a property settlement. Splitting is done by way of a superannuation splitting order or financial agreement and requires the fund to be notified. Valuation rules differ between accumulation and defined-benefit funds.

What is a financial agreement?

A financial agreement is a private contract between parties — entered into before, during or after a relationship — that sets out how property and financial resources will be dealt with. To be binding under the Family Law Act, each party must obtain independent legal advice and the agreement must comply with strict formal requirements. They are commonly used by people entering second relationships, blended families and business owners.

What if there is family violence?

Family violence is a serious issue and is addressed both through intervention orders in the Magistrates' Court of Victoria and as a factor in family law parenting and property matters. If you are at immediate risk, contact police on 000. We can assist with intervention order applications, responses, variations, and the interaction between intervention orders and family law proceedings.

Do family law matters have to go to court?

No — and most do not. The vast majority of family law matters are resolved by negotiation, mediation or family dispute resolution and formalised by consent orders or a financial agreement. Court proceedings are reserved for matters where agreement is not possible, where urgent intervention is needed, or where the conduct of the other party makes negotiation unworkable.

When should I obtain legal advice after separation?

As early as possible. Decisions made in the first weeks after separation — about who stays in the home, joint accounts, children's living arrangements, and disclosure of assets — can have lasting consequences. An early consultation is confidential, helps you understand your position and options, and avoids steps that can be difficult to undo later.