A married couple can separate at any time however, they cannot apply for a divorce until they have been separated for twelve months.
This does not mean that important decisions about property, money and children are left in limbo until the couple divorces.
Whether the separating couple have been married or have lived in a de facto relationship, are straight or gay, they can negotiate and record a settlement agreement about property, spouse maintenance, arrangements for the children and child maintenance or commence proceedings in the Family Court any time after separation.
Agreements can be recorded in two ways:
- Settlement agreements are formalised by Consent Orders. The agreement is then filed at the Family Court seeking orders in terms of what has been agreed. The Court then considers if the application is fair to both parties and if so will make the Orders sought. Orders are binding once made.
It is advisable for each party to each obtain their own independent legal advice in relation to the agreement and the orders they are seeking. This is not an essential requirement, however there is potential for exploitation or manipulation when one party is in a weaker position and has no one to protect his or her interests.
- The second way to formalise settlement agreements (but for financial matters only – not children) is with a Binding Financial Agreement (BFA). Both parties must sign a BFA and have independent legal advice about how the agreement affects their rights and interests. There is no Court oversight of a BFA.
For couples wanting to go their separate ways and get on with their lives, consent orders or a BFA provides the basis on which they can do this. In the case of married couples, they can achieve a settlement even though they may not yet be legally divorced.