What happens when your relationship ends?

Divorce in Australia means legally ending a marriage. You can apply for a divorce jointly with your spouse, or by yourself. You can get divorced, even if your spouse does not agree.

The court will not ask whose fault it is when you apply for divorce. The only way to prove that the marriage has broken down irretrievably, is to show there has been 12 months of separation. This can mean living in a different place or living separately at the same address.

You apply for a divorce through the FCFCOA online service, called the Commonwealth Courts Portal. For more information or help with using the portal, see our publication Divorce factsheet 4: Filing your divorce application online or visit our Do your own divorce website.

A divorce will only legally end your marriage. It will not resolve issues in relation to the children or how your property will be divided. Many people start negotiations or make arrangements about their children and family finances as soon as they separate.

If you get divorced before you and your ex-partner have sorted out your financial matters, you have a 12-month time limit to start a case about finances after the divorce is granted.

For free legal help with your divorce, see More information below.

Both you and your ex-partner are allowed to live in your home after separation regardless of whose name is on the rental agreement or the title of the property, unless there is a court order about this (see below). However you should always consider your safety and the safety of children, pets and others.

If you choose to leave, it will not affect your entitlement to a share of the property. Any rights you have built up during the relationship will remain even if you leave. If you fear violence, get legal advice immediately.

The court can make sole occupancy orders which means one person can remain in the home or one person must leave. These orders are usually made in exceptional situations where there is domestic violence or threats are being made by one spouse against the other, especially if the children are affected, or the house has been adjusted because somebody has a disability.

If you are worried about your safety or the safety of your kids, get legal advice as soon as possible. See More information below.

If it is safe, try family dispute resolution or mediation.

There are many services that help with counselling and family dispute resolution including Legal Aid NSW, the Family Relationship Advice Line and Family Relationship Centres.

Before you can go to court about your children, you usually have to try family dispute resolution first, unless the situation is urgent or unsafe. You must also get a certificate from a family dispute resolution practitioner or ask the court to let you skip this step.

You don’t have to get formal court orders made about arrangements for your kids – you can come to an informal agreement. Many separated parents have informal agreements in place about the parenting of their kids.

Agreement is usually reached through negotiation between the parents with or without the help of mediation or counselling services. Neither parent can make the other stick to an informal agreement.

It’s important to get legal advice because the agreements you make about where children live and where they spend their time can also affect property matters and child support.

Parents can enter into agreements about the arrangements for their kids, known as parenting plans. A lawyer, family counsellor, family dispute resolution practitioner or family consultant (an adviser) can help you and your ex make a parenting plan.

A parenting plan must be in writing, signed and dated.

It can be changed by another signed written agreement. Parenting plans create no legal obligations on either parent. However, the court can consider what has been agreed in a parenting plan if you need to go to court later about parenting issues.

A consent order is a written agreement about parenting that both parents have made, usually with help from a lawyer or dispute resolution service. It is filed with the court, and once the court approves it, the agreement becomes legally binding. This means the court can make sure everyone follows it.

A parenting order is a court order that deals with arrangements for the children. It can be a consent order if made by agreement or a court-imposed order after a hearing.

A parenting order can include orders about:

• who a child will live with
• what time a child will spend with a parent or other persons important to the child
• how the parents will make decisions about major long-term issues (for example about education, healthcare and religion)
• how parents will communicate about a child, and
• how any disputes about what is set out in the orders will be resolved.

When the court makes orders deciding what arrangements will be in a child’s best interests, it must consider the following factors:

• what arrangements will keep a child and their carers safe from harm, family violence, abuse or neglect (this includes consideration of current and previous family violence orders and any history of harm)
• the child’s views
• the child’s developmental, psychological, emotional and cultural needs
• the capacity of any person seeking parental responsibility for the child to provide for the child’s needs
• where it is safe, the benefit to the child of a relationship with their parents and other people who are significant (such as grandparents and extended family members), and
• anything else that is relevant to the child.

For Aboriginal or Torres Strait Islander children, the court must also consider how the parenting orders will help the child enjoy and connect with their Aboriginal or Torres Strait Islander culture.

Grandparents (or anyone who has and wants to continue an ongoing relationship with children who are important to them) can apply for an order to spend time with their grandchildren.

Grandparents must show that an order to spend time with the children is in the best interests of the children and safe for everyone involved. Grandparents may need to attend family dispute resolution before they can apply to the court. For more information about your rights as a grandparent, see our publication Are you a grandparent?

Children under 18 can’t make the final decision about where they live. The court decides where children live and how much time they spend with each parent. The court must listen to what the child wants and consider each child’s maturity and level of understanding. Older children’s opinions are usually given more weight, but the court makes the final decision.

Sometimes the court asks for a special lawyer, called an independent children’s lawyer, to help make sure the child’s views are heard – if the child wants to express them. This lawyer must meet with the child and might also talk to their school or doctor. Their job is to give the court important information and reports that help decide what’s best for the child. If needed, they can ask for an expert to help the court figure out who the child should live with and spend time with.

In NSW, the consent of both parents is usually required to change their child’s name. However, if one parent is the sole person listed on the birth certificate, or if one parent has a court order that gives them sole parental responsibility or sole responsibility for making long term decisions for the child, they can apply alone.

If parents are separated and the other parent does not consent, one parent must obtain a court order to get permission to change a child’s name. A parent may also ask the court to stop a parent from using a different name for their child. If the parents do not agree, the court will make a decision based on the best interests of the child.

To formally change a child’s name, you must apply to the NSW Registry of Births, Deaths and Marriages through Service NSW. Children aged 12 years and over must consent to their change of name.

A child cannot change their name on their birth certificate themselves until they are 18 years old in NSW.

Usually both parents must consent to obtain an Australian passport for a child. If one parent refuses to consent, then you will usually need to obtain orders from the court for a passport to be issued, and to permit the children to travel without the consent of the other parent.

If you take children out of Australia without permission and there are court proceedings or orders, you could be committing a criminal offence. If children are taken overseas for the purposes of underage marriage, this is a crime.

Australia has an agreement with many countries (the Hague Convention) which requires these countries to send the children back if a parent tries to relocate overseas with them.

If you are worried about your children going overseas without your knowledge, seek legal advice immediately.

You can lodge a Child Passport Alert with the Australian Passport Office to try to prevent a passport being issued but remember if one parent is a dual national it may be possible for them to obtain a foreign passport for a child. The only way to stop a child from being taken out of Australia is to place their name on the Family Law Watchlist maintained by the Australian Federal Police at all seaports and airports.

For more information about the Family Law Watchlist, see The other parent has taken the children and is refusing to return them. What should I do? below.

If the other parent breaks a court order about your kids, you have a couple of choices:

1. if it is safe, you can try to sort things out by going to counselling or using mediation, or
2. you can go to court and ask a judge to enforce the order or change it.

The court takes breaches of its orders very seriously and consequences can range from making up the lost time, to very serious consequences like fines and gaol.

When a breach occurs, the non-complying parent may show a reasonable excuse, for example a risk to the safety of the child.

If the orders breached are no longer workable, the court may consider changing the orders.

If one parent wants to move to a new place and that move could make it harder for the kids to see or talk to the other parent regularly, there are a lot of things that need to be looked at first. If the parent moves without getting permission from the court or without an agreement, or breaks a court order, the other parent can ask the court to make the kids return.

Where there are court orders about the child

Before you move, you need to check the court order to see if the move would break any rules. For example, if the order says your kids must spend every weekend with the other parent, and you want to move from Sydney to the Gold Coast, that would likely break the order. You’d need to get the order changed – either by agreeing with the other parent or by asking the court – before you go.

Where there are no court orders about the child

You’re not breaking any official court orders by moving. But if you have an informal agreement or parenting plan that lets your kids spend time with the other parent, they can ask the court to stop you from moving away with the children. Above all, the court will focus on what’s best for the child.

You can apply to the court for a recovery order. This order allows the police (both state and federal) to find and return your children to you.

If you do not have an order that the children live with or spend time with you, you must apply to the court for these orders at the same time as a recovery order.

If there are any safety or risk issues, get urgent legal advice. If you are in danger or you believe children are in danger, call the police.

If you are worried that the children might be taken out of Australia you can apply to the court to place the children on the Australian Federal Police Family Law Watchlist.

If there’s an emergency or safety concern, the court can make certain orders (like a recovery order or a family watch list order) without telling the other person first or hearing their side. These are called ‘ex parte’ orders. If this happens to you, you should get urgent legal advice about what you can do next.

The same laws about property apply whether or not you were married or in a de facto relationship. You can start negotiations about property as soon as the marriage or relationship has broken down.

If you get divorced you must start property or spouse maintenance proceedings within 12 months of your divorce becoming final. If you have been in a de facto relationship, you must commence property or maintenance proceedings within two years of your separation.

A de facto relationship is defined in the Family Law Act. The law requires that you and your former partner, who may be of the same another sex or gender, had a relationship as a couple living together on a genuine domestic basis.

If you are in a de facto relationship you can make an application for a property settlement under the Family Law Act if any one or more if the following conditions apply:

• your de facto relationship lasted for at least two years
• you have a child with your de facto partner, or
• you have made a substantial contribution to the property or finances of your partner.

If there is a dispute about whether you were in a de facto relationship, the court will look at things such as the length of the relationship, your living arrangements, arrangements of finances and property ownership, whether there was a sexual relationship, whether or not you had or cared for children and the way you presented your relationship in public.

Property includes all things owned by either one or both partners (in joint or sole names) including:

• cash and investments
• real estate as well as personal property (e.g. cars, furniture)
• property owned before the relationship
• gifts, inheritances, lottery wins received by one partner or spouse, and
• redundancy payouts.

Superannuation will be relevant to any property settlement. It can be treated as property and can be split between married or de facto couples after they separate. How superannuation entitlements will be split depends on a variety of matters, including the type of superannuation scheme to which that person belongs. You should consult a lawyer if superannuation is an issue in your matter.

When considering how to divide the property between the parties, the court must:

• identify all of the property and debts owned by you and your ex-partner
• assess the contributions you each made to the property and to the welfare of the family, and
• assess the current and future circumstances of you and your ex-partner (for example your age and state of health and the care and needs of your children).

When it assesses these things, the court must consider the economic impact of any family violence, including coercive control and financial abuse. Overall, the court must only make orders dividing property that are just and equitable, that is that are fair given everything that’s happened.

Many separating couples come to an agreement about how the property should be divided between themselves or through mediation.

It is important to get legal advice about the property after you separate, even if you agree. A lawyer can help you with consent orders that can be filed with the family law courts.

The law requires both you and your ex-partner to be completely honest with the court and each other about your finances – including all money, assets, debts and income.

This duty to disclose information means you must share all your financial information and documents that matter to your case. You can’t hide anything or leave anything out, and you need to provide this information quickly when asked.

You must do this:

• when you are negotiating with your ex-partner about property, and during mediation, and
• from the start to the end of any court proceedings.

If you do not provide the information about your finances it could hurt your case and cost you money.

Under the Family Law Act, pets, or ‘companion animals’ are considered property. If there is a disagreement about who should keep the pets, the court can make orders that they belong either to you or your ex-partner, or that that the pet be sold or re-homed. The court can’t make orders about sharing the care of pets.

Any parent knows that it costs a lot to look after children. Of course, this does not change when parents separate. Parents need to work out how they will continue to pay for their children’s food, housing, clothes, school costs and other activities and expenses after separation.

The money, or in kind payments, paid by one parent to the other (or to someone else if the children do not live with a parent) is called child support or child maintenance. Sometimes one parent makes these payments to the other even if the children are living part of the time with the paying parent.

Child support may apply to all parents. It doesn’t matter if you have been married, in a de facto relationship, never lived together, never had a relationship, or what gender you or your partner are.

Services Australia, the Commonwealth government agency that looks after child support payments, uses a mathematical formula to work out how much child support should be paid.

The end result is a child support assessment. The child support assessment takes into account factors such as the number of children involved, the age of the children, the parents’ income and the level of care each parent provides for the children.

Once a child support assessment is made by Services Australia, parents are free to arrange private payment of this sum. The person entitled to receive the child support payments can also ask Services Australia to collect these payments on their behalf. It is a good idea to have Services Australia collect if a parent/carer believes the other parent will not pay.

Child support assessments can be varied to reflect certain changes in circumstances such as a change in income, the birth of a new child or changed care arrangements. Parents or carers with a child support assessment need to tell Services Australia of changes in circumstances such as a new address, income or changed care arrangements as soon as these events occur as Services Australia cannot back-date assessments to reflect these changed circumstances.

An application can also be made to Services Australia to ask for the child support assessment to be changed due to special circumstances.

This could take into account:

• the high costs of spending time with your child (for example if the parents live a long way apart)
• caring for your child (for example if they need braces on their teeth or have a disability with high out-of-pocket expenses)
• educating your child (for example if the parents have agreed they attend a non-government school), or
• the assessment does not properly reflect one or both parent’s capacity to pay child support in some other way.

In certain circumstances it is possible to back-date these changes. You should obtain legal advice about this process before you begin.

Parents or carers must read letters from Services Australia carefully (or ask for them to be explained) to find out about their obligations to inform Services Australia when something changes.

It is possible to object to various decisions made by Services Australia and these objections can usually also be reviewed by the Administrative Review Tribunal (ART). Time limits apply and these are usually stated in Services Australia’s decision letter. You may find it helpful to get legal advice about lodging an objection or applying to the ART.

Parents can make agreements known as child support agreements, which set out in writing the amount, frequency and method of payment of child support payments.

Child support agreements should not be entered into lightly and you should obtain independent legal advice before signing one. Child support agreements can be limited or binding. Only binding child support agreements require a lawyer to provide a special certificate of independent legal advice, but you should always obtain legal advice before signing any sort of child support agreement.

If the parent or carer receiving the child support payments is receiving more than the minimum amount of family tax benefit, Centrelink has rules that must also be taken into account when making a child support agreement.

Services Australia will only issue a child support assessment if you can prove that the paying parent is a biological or adoptive parent of the child, or a former same-sex partner (in certain circumstances). Acceptable proof includes having that person named as a parent on the child’s birth certificate, showing that the parents were married to each other at the time of the child’s birth, or a statutory declaration made by a person acknowledging they are a parent of the child. If you do not have acceptable proof, you may need to take further steps to prove parentage. This may include court action and, in some cases, DNA parentage testing done by an approved laboratory. For more information, see our publication Child support factsheet 1: Taking action to get child support.

The Child Support Service at Legal Aid NSW can give you advice about getting proof of parentage for a child support application.

Call the Child Support Service on (02) 9633 9916 (Sydney and metropolitan areas) or 1800 451 784.

To find out what your options are, contact Services Australia by calling 131 272 or see Separated parents on the Service Australia website. It is important to act quickly, because Services Australia often cannot back-date assessments to reflect changed circumstances. You may find it helpful to get legal advice about your situation.

Both parents have an obligation to financially support their children until they are at least 18 years of age, even after separation. That legal obligation does not change when one or both parents re-partner. A parent’s new partner does not have a legal obligation to support another person’s child.

If a child turns 18 while still in secondary school, the carer parent can ask Services Australia to continue the child support assessment until the child completes the current school year. This application must be made before the child turns 18, and only runs until the end of that school year.

Once the child support assessment ends, either a private agreement must be reached or the carer/parent or young person can make an application to the court for an order under the Family Law Act.

You can apply for financial support under the Family Law Act for a young person over 18 if they have a disability or need adult child maintenance payments to help them finish their education. It’s really important to get advice from a lawyer who knows how these applications work, because whether you succeed depends on your situation and how well your case is prepared.

Once someone turns 18, they’re expected to try to support themselves, even if they have a disability – but this depends on what they’re able to do. In some cases, legal aid might be available to help cover costs.

LawAccess NSW

LawAccess NSW is a free information service run by Legal Aid NSW. Anyone who has a legal problem in NSW can contact LawAccess NSW for legal help.

Start a web chat or call LawAccess on 1300 888 529 between 9am and 5pm, Monday to Friday (excluding public holidays).

Legal Aid NSW ‘Do your own divorce’ website

This is a free step-by-step interactive guide to help you apply for a divorce in Australia which includes ‘how to’ videos, checklists and links that will help apply for a divorce through the FCFCOA.

Visit the Do your own divorce website.

Legal Aid NSW Child Support Service

Free, independent confidential advice about child support issues.

Call the Child Support Servicve on (02) 9633 9916 (Sydney and metropolitan areas) or 1800 451 784 (outside Sydney).

Early Intervention Unit (EIU)

The EIU is a state wide specialist service of Legal Aid NSW. They can help you resolve your family law issues early without the need to go to court.

Call the EIU on 1800 551 589.

Community Legal Centres NSW

Community legal centres are independent non-government organisations that provide free legal help.

To find your closest centre visit the Community Legal Centres NSW website.

The Law Society of NSW Solicitor Referral Service

Call the Law Society of NSW Solicitor Referral Service on (02) 9926 0300 or email ereferral@lawsociety.com.au.

If you are in immediate danger call 000 for urgent assistance or 1800RESPECT (1800 737 732) for help 24 hours a day, 7 days a week.

Domestic Violence Unit (DVU)

A dedicated statewide service of Legal Aid NSW bringing together specialist domestic violence lawyers, social workers and financial counsellors.

Call the DVU on 1800 979 529.

Family Advocacy and Support Services (FASS)

The Family Advocacy and Support Service (FASS) is an integrated duty lawyer and social worker service for those affected by family violence.

Call FASS for family support on 1800 551 589, women’s support on 1800 11 3277, and men’s support on 1300 00 3277.

Women’s Domestic Violence Court Advocacy Services (WDVCAS)

Information, court advocacy and referral for women in domestic violence situations and assistance with getting an ADVO.

Call WDVCAS on 1800 938 227.

Family Violence Law Help

For easy-to-understand legal information about AVOs, family law and child protection, visit the Family Violence Law Help website.

The Federal Circuit and Family Court of Australia (FCFCOA)

You can get further information about court processes, forms, fees, on the FCFCOA website. You can also use the FCFCOA website to speak with someone via live chat or submit an enquiry.

If your matter is urgent, call the FCFCOA on 1300 352 000.

Services Australia: Child Support

Call Child Support on 131 272 or see Child support on the myGov website.

NSW Registry of Births, Deaths and Marriages

Call Service NSW on 13 77 88 or visit the NSW Registry of Births, Deaths & Marriages website.

Administrative Review Tribunal (ART)

Call the ART on 1800 228 333 or visit the Administrative Review Tribunal website.