So, you’ve just separated from your spouse; what you need to know now

This is the first of a series of articles which will provide you with a better understanding of our family law legal system.  It is our desire that this article has been informative in presenting an overview of our family law legal system. 

Separation from one’s spouse can be a difficult process to navigate.  Unfortunately, dealing with the emotional impacts of separation can be the start of a difficult journey into singledom. 

From a legal standpoint, the challenging aspect of separation can include a consideration of one’s rights and entitlements following a separation from a former spouse.  Questions, such as “can I get 50% of the value of the house” and “can I get 50% custody of the children” often arise.  Well, the answer is never as simple as the question.

This is the first of a series of articles which will address legal implications of separation.

Under our family law legal system, there are two types of legal relationships which are recognised by our legal system.  The former relationship is the long-established union between two individuals who are bound by marriage, and the latter is the more recent legally recognised relationship of de facto couple.

Whilst there are legal requirements, or more precisely, thresholds, which need to be established for the law’s recognition of a marriage or a de facto relationship, we will assume, for now, that you fall within one of these two forms of legally recognised unions.

Within our family law legal system, you ought to be aware of three types of legal proceedings: Divorce matters; Children and Parenting matters; and Property and Financial Settlement matters.  We will address these types of legal proceedings in more detail in our further articles to come.

By now, you would have seen multiple references to ‘our family law legal system’.  The question you may be wondering is: “who is in charge of our family law legal system”.  The answer is revealed in our Australian Constitution.  The relevant provisions are found in sub-sections 51(xxi) and 51(xxii) of the Commonwealth of Australian Constitution Act and authorise our Commonwealth Parliament to make laws with respect to “Marriage” and “Divorce and marital causes; and in relation thereto, parental rights, and the custody and guardianship of infants”.  The Commonwealth Parliament in turn has authorised the newly formed Federal Circuit and Family Court of Australia to deal with disputes which arise between married and de facto couples.  Finally, the prevailing legislation which regulates our family law legal system is the Family Law Act 1975 (Cth).

Should you have any questions, we invite you to contact our office to speak to one of our family law experts.