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Free Guide to Hiring a Family Lawyer
Divorce and separation in Clayton follow Australian family law. Marriage breakdowns are dealt with under the federal Family Law Act 1975 and related legislation. Divorce ends a marriage - it does not itself decide parenting arrangements or property division. Parenting matters, property settlements and child support are handled under the same federal system but usually require separate applications or agreements. Courts that hear family law matters operate nationally, with local registries and services accessible to people in Clayton and the greater Melbourne area.
Family law matters touch on money, children, property and safety. A lawyer can help you understand rights and obligations, prepare and lodge court documents, negotiate settlements and represent you in hearings. Common situations where you may need a lawyer include:
- Disputes about who the children will live with and how time is shared.
- Significant assets or complex financial arrangements including businesses, trusts or superannuation.
- High conflict separations where communication has broken down or where one party refuses to negotiate.
- Allegations of family violence, child abuse or urgent safety concerns.
- Need to formalise an agreement into consent orders or a financial agreement that will be legally binding.
- Uncertainty about time limits for applying to court, or when you must act to preserve your rights.
Key legal concepts and local law points that apply to people in Clayton include:
- No-fault divorce: Australian divorce is no-fault. The only ground for divorce is irretrievable breakdown of the marriage demonstrated by 12 months of separation.
- Residency requirements: To file for divorce you must meet residency tests - for example being an Australian citizen, being domiciled in Australia, or being ordinarily resident in Australia and having lived in Australia for 12 months immediately before applying.
- Separation rules: You can be separated while living under the same roof, but you will need clear evidence of separation. The court requires the parties to have been separated for at least 12 months before granting a divorce.
- Parenting matters: Decisions about children are governed by the best-interests test. Parents are generally expected to attempt family dispute resolution prior to applying for parenting orders, unless there are safety concerns or other exceptions.
- Property and financial settlements: The Family Court can divide property and make spousal maintenance orders. Married couples generally have 12 months from the date their divorce becomes final to apply for property settlement. De facto couples have different time limits, generally two years from separation unless an exception applies.
- De facto relationships: De facto separation and property settlement are covered under federal law when the relationship meets criteria - for example duration of the relationship, presence of children, or significant financial arrangements.
- Family dispute resolution and mediation: Before making a parenting application to court, you will normally need a certificate from an accredited family dispute resolution practitioner showing you attempted mediation, unless exceptions apply for family violence, child abuse or urgency.
- Court system and local services: Family law matters are heard by the Federal Circuit and Family Court of Australia. Local registries and support services are available in Melbourne and the surrounding region for people living in Clayton.
- Child support and government services: Child support is administered separately by the national agency responsible for child support assessments and enforcement. Legal aid, community legal centres and family relationship services provide local support and advice.
Separation is the end of the relationship - it means the parties no longer live as a couple. Divorce is a legal order that ends a marriage. You must be separated for at least 12 months before you can apply for a divorce in Australia. Legal separation is not required to end a de facto relationship - different rules apply for property and support.
You start by preparing and filing a divorce application with the Federal Circuit and Family Court of Australia. Applications can be sole or joint. You must meet the residency and separation requirements. Court staff or a family lawyer can explain the documents you need to file and what will happen next.
You do not have to have a lawyer to apply for divorce, especially in straightforward, uncontested cases. However, if there are disputes about children, property or safety, or if you are unsure about how to protect your financial interests, a lawyer experienced in family law is strongly recommended.
When a relationship ends either party can apply for property settlement. The court will identify and value assets and liabilities, consider the parties contributions, and then look at future needs to reach a final division. Many couples negotiate a settlement or formalise an agreement without a full hearing.
Parenting arrangements should put the child's best interests first. Parents are encouraged to agree on living arrangements, spending time, schooling, health and other issues. Where agreement is not possible, a court can make parenting orders. Family dispute resolution is usually required before applying for parenting orders, unless there is family violence or other exceptions.
Family violence and child safety are treated with priority. If you or your children are at risk, contact police or emergency services first. Apply for intervention or protection orders as needed. These circumstances can exempt you from attending family dispute resolution and will be important evidence in any family law proceedings.
Child support is managed through the national child support agency. Parents can agree privately on support or use the agency to assess and collect payments. Child support is separate from parenting orders and property settlement, but courts consider child support when looking at parties financial needs.
Consent orders are court orders that formalise an agreement reached by the parties about property or parenting. They are legally binding once approved by a court. Financial agreements, often called binding financial agreements, are contracts between the parties that can be used to settle financial matters without a court hearing. Both require careful legal advice before signing.
If you were married, you generally have 12 months from the date your divorce becomes final to apply to the court for property settlement. For de facto relationships, you generally have two years from separation. There are exceptions and extensions in special circumstances, so seek legal advice early to avoid missing deadlines.
Costs vary depending on the complexity of the matter, the lawyer's experience, and whether the matter goes to hearing. Options can include private lawyers, fixed-fee services, limited scope assistance, legal aid for eligible clients and community legal centres. Ask for a cost estimate, billing structure and a costs agreement at your first meeting.
Federal Circuit and Family Court of Australia - local registry and court procedures for divorce, parenting and property matters.
Family Relationship Advice services - for information about separation, parenting and dispute resolution options.
Victoria Legal Aid - for information about legal aid eligibility in family law, family violence and child protection matters.
Community legal centres and local legal services - many provide free or low cost family law advice and assistance in the Clayton and broader Melbourne area.
Relationships Australia - family dispute resolution, counselling and family relationship services.
Services Australia - information about child support assessment and administration.
Local police and family violence support services - for immediate safety concerns and intervention orders.
If you are facing separation or considering divorce, these steps will help you move forward:
- Gather key documents - marriage and birth certificates, financial records, property titles, bank statements, superannuation details, tax returns, evidence of separation and any protection orders or police reports.
- Get initial legal advice - contact a family lawyer, community legal centre or Legal Aid to understand your rights, time limits and likely options.
- Consider safety - if you or your children are at risk, prioritise safety. Contact emergency services, police or family violence support services and seek any necessary protection orders.
- Try family dispute resolution for parenting issues - where appropriate, attempt mediation to reach agreements about children before going to court.
- Keep records - document communication, financial transactions, parenting arrangements and any incidents of concern. Good records help lawyers and the court.
- Ask about costs and services - when you contact a lawyer ask about initial consultation fees, the retainer process, options for unbundled services and whether they provide fixed-fee work for specific tasks.
- Formalise agreements - when you reach an agreement on property or parenting, get it formalised by lawyers and the court if necessary, so it is enforceable.
Note - this guide provides general information and does not replace personalised legal advice. If your situation involves complex property arrangements, disputes about children, or family violence, seek qualified legal assistance promptly.
