What happens when your relationship ends?

When you first separate, there is nothing that you need to do and no document you need to sign to confirm that you are separated.

Divorces are a formal end to a marriage. After you have been separated for at least 12 months you can file for divorce. Most people will need to complete and eFile an Application for Divorce online through the Commonwealth Courts Portal. For more information see our publication Divorce factsheet 1: Applying for a divorce. If you are unable to access the online system, contact the Federal Circuit and Family Court of Australia (FCFCOA) or a lawyer.

It is possible to obtain a divorce even if you and your spouse lived in the same home during a part or all of the 12-month separation period. You will need to provide extra information and documentation to the court. You should obtain legal advice. For more information, see our publication Divorce factsheet 3: Separation under the same roof.

You can not apply to the court for a divorce order (decree of dissolution of marriage) unless you have been separated for at least 12 months before the application is filed.

However you can start negotiations about property (and children) as soon as the marriage has broken down.

Many matters are resolved before the divorce application is filed.

To obtain a divorce kit visit FCFCOA | Divorce Service Kit (do it yourself kit).

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.

If you get divorced before you and your ex-partner have settled your property, you must start property and/or spouse maintenance proceedings within 12 months of getting divorced.

Legal Aid NSW can give you free help with your divorce:

• contact the Family Law Early Intervention Unit (EIU) on 1800 551 589. The EIU provides free family law services in courts and community organisations throughout NSW.
• contact LawAccess NSW by starting a web chat or calling 1300 888 529 between 9am and 5pm, Monday to Friday (excluding public holidays). LawAccess NSW is a free information service run by Legal Aid NSW. 

Both you and your spouse or ex-partner are entitled to live in your home after separation regardless of whose name is on the rental agreement or the title of the property.

You cannot be forced to leave just because the property is not in your name unless the court orders it. See Property for more information about family law property orders.

If you have to move out, 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, you should seek advice immediately. See Who to contact for more.

Sometimes one party can obtain a sole occupancy order requiring the other party to leave the home. The court can make what is called an exclusive occupancy order of the house for either spouse. That means you can live in the house, without your spouse living there until the property has been divided.

When the court makes this kind of order, it will look at the needs of the parties and the children. Sole occupancy orders will usually only be 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 it is safe, try dispute resolution.

Before you go to court about your children, you must:

• make a genuine effort to resolve the dispute through counselling or mediation, and
• make reasonable efforts to communicate with your ex-partner.

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. See Who to contact for more.

Family dispute resolution (also known as mediation) is required before you can start court proceedings about children, unless your case is urgent or involves some exceptional factors such as family violence. The court usually requires a certificate from a family dispute resolution practitioner before a case about children can go ahead. For more information, see our 'Family Dispute Resolution at Legal Aid NSW' publication.

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

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 will often be important to get some 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 are able to enter into agreements about the arrangements for their children, 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 filed at, and approved by the court and is binding because the court can be asked to enforce it. It records agreements reached about parenting after negotiating with the other parent, usually with the help of a lawyer or dispute resolution service.

Family law matters in NSW are dealt with in the Federal Circuit and Family Court of Australia (FCFCOA) and the Local Court. In many cases if you file your matter at the Local Court it will be transferred to the FCFCOA. Most matters are likely to be decided in the FCFCOA.

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 (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.

The parenting order that the court makes can cover issues like:

• 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 decide major long term decisions (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.

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 see our 'Are you a grandparent?' publication.

The court has the power to make orders about where children live and the time they spend with each parent where children are under the age of 18. There is no age under 18 when the court will listen only to the child’s views. The court must consider each child’s views, but the importance placed on those views will depend on each child’s maturity and level of understanding. Older children’s views may be considered particularly significant by the court.

Sometimes the court may request that an independent children’s lawyer be appointed to form an independent view of the evidence and act in the best interests of the child. This lawyer may interview the child without their parents present, contact schools and health professionals of the child or parents, and make sure certain documents and reports are provided to the court. They may ask for a court expert to be appointed if they believe it is necessary to assist the court to reach a decision about who the children should live with and spend time with.

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

The consent of both parents is required or if this is not possible, a court order is required.

Either parent can apply to the court for an order seeking permission to change a child’s name (if the other parent won’t agree) or to stop (restrain) a parent from using a different name for their child.

The court will make its decision based on what is in the best interests of the child. For example, the court may look at the embarrassment a child may suffer because they have a different name from the parent they live with, or the possibility of the child being confused by the name change.

However the court rarely authorises a name change where both parents have a relationship with the child.

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

If you are worried about your children obtaining a passport without your permission or going overseas without your knowledge, seek legal advice immediately.

Unless exceptional circumstances exist, both parents’ consent is required to obtain a passport for your children. 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 the children out of Australia without permission and there are court proceedings or orders, you could be committing a criminal offence.

Regardless of whether any court orders are in place, Australia has an agreement with many countries (the Hague Convention) which requires these countries to send the children back.

If the other parent is in breach of an order affecting your children, you can either:

• try to resolve the conflict through counselling or mediation services if it is safe, or
• you can apply to the court alleging the other party has contravened (broken) the parenting order.

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 very sick child (supported by proper medical evidence) may be considered a legitimate reason for a parent breaching an order.

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

If a parent needs to move away and that move may affect the children’s ability to spend time with and communicate with the other parent on a regular basis, a range of factors need to be considered.

You will need to look at the court order to see whether the move will breach the order. For example, if the order says your children are to spend time each weekend with the other parent and you plan to move from Sydney to the Gold Coast, you would probably be in breach if you moved. You would then need to have the orders varied either with the other parent’s consent or by the court before you move.

You will not be breaching any orders by moving. However, if there is an informal agreement or parenting plan for your children to spend time with the other parent, then the other parent can ask the court for an order which stops you from leaving the area with the children. Above all, the court will look at what is in the best interests of the child.

If you have an order that the children live with you or spend time with you and the children have been taken or not returned, you need to 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 need to apply to the court for such an order, as well as a recovery order. This can be done at the same time.

Sometimes in an emergency the court may give these orders ex parte, that is without the other parent being at court. If you are worried that the children might be taken out of Australia you should put the children’s names on the Family Law Watchlist (previously called the Airport Watchlist). You will need to apply to the court to place the children on the Watchlist and send a copy of the application and any court orders made to the Federal Police.

If you find yourself in this situation you should phone the Federal Police and find out what they require.

The same laws about property apply whether or not you were married or in a de facto relationship (whether with a partner of the opposite sex or the same sex). 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 or opposite sex, 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.

There is no formula or rule that determines how the property will be divided. The court is not required to split the property 50/50.

It will consider many things, including:

• Property owned before the marriage or relationship. The extent to which this is considered the property of an individual partner will depend on the length of the marriage or relationship and what contributions the other partner made (if any) towards the accumulation and upkeep of property.
• Contributions made by both partners during the marriage or relationship. This includes direct contributions (e.g. wage earnings, maintaining assets and property), indirect contributions (e.g. gifts, assistance from family members), and non-financial contributions (e.g. do-it-yourself home renovations and contributions made to the welfare of the family as a caregiver or homemaker).
• Future needs (e.g. whether one partner will be supporting a child, the age and health of each partner and their ability to obtain employment and earn income).
• Generally, contributions to the welfare of the family would be considered to be just as important as the contribution of the primary wage earner.

It is a good idea to get a lawyer for your property settlement even if only for legal advice and help making consent orders. Otherwise, even if you have settled up in accordance with an informal agreement, there is nothing to stop the other party taking you to court to get more. If you have court orders, you may be exempt from paying stamp duty on many property transfers.

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 Appeals Tribunal (AAT). 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 AAT.

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/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 (02) 9633 9916 (Sydney and metropolitan areas) or 1800 451 784.

Contact Services Australia and find out what your options are. These will vary depending on your circumstances, but chances are that you will be able to pay less child support.

Contact Services Australia via phone on 131 272 or visit Services Australia | Separated parents. 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 repartner. 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.

It is possible to make an application under the Family Law Act for maintenance for a young person over 18 if they have a disability or maintenance is necessary to help them complete their education. It is very important to get legal advice about your situation from someone experienced in making these applications to the court, because success depends on the circumstances of your case and how well you prepare. It is also important to remember that once a young person turns 18, they have an obligation to do everything they can to support themselves, even if they have a disability. This will depend on the capacity of the young person involved. Legal aid may be available for these types of cases.

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 via web chat or by calling 1300 888 529 between 9am and 5pm, Monday to Friday (excluding public holidays).

Legal Aid NSW Child Support Service

Free, independent confidential advice about child support issues. Call (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 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 or call LawAccess NSW on 1300 888 529.

Law Society of NSW Solicitor Referral Service

Call (02) 9926 0300 or email ereferral@lawsociety.com.au for referral to private lawyers.

Wirringa Baiya Aboriginal Women’s Legal Service

A state-wide community legal centre for Aboriginal women, children and youth. Call (02) 9569 3847 or 1800 686 587

Women’s Legal Service NSW

A community legal centre providing women across NSW with a range of free legal services.  Call (02) 8745 6988 in metro areas or 1800 801 501 (toll free) in regional areas.

First Nations Women’s Legal Service Contact Line

Free confidential legal information, advice and referrals for Aboriginal and Torres Strait Islander women in NSW. Call (02) 8745 6977 or 1800 639 784 (Monday, Tuesday, Thursday 10.00am–12.30pm).

Domestic Violence Unit (DVU)

A dedicated statewide service of Legal Aid NSW bringing together specialist domestic violence lawyers, social workers and financial counsellors. Call 1800 979 529.

Family Advocacy and Support Services (FASS)

Help for families affected by family violence and who have a family law issue. They also have dedicated social support workers for women and for men. Call 1800 979 529.

• Social support for women: 1800 11 FASS (1800 11 3277)
• Social support for men: 1300 00 FASS (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 1300 WDVCAS (1300 938 227).

Family Violence Law Help

Family Violence Law Help is a website with easy-to-understand legal information about AVOs, family law and child protection.

MensLine

Phone support and referral for male victims and perpetrators of domestic violence. 24 hours, 7 days. Call 1300 789 978 or visit the MensLine website.

Federal Circuit and Family Court of Australia (FCFCOA)

You can get further information about court processes, forms and publications on the FCFCOA website. You can also visit the FCFCOA enquiries hub to speak with someone via live chat or submit an enquiry. If your matter is urgent or requires time critical intervention, call 1300 352 000.

Legal Aid NSW Family Dispute Resolution (FDR) Service

Call (02) 9219 5118 or (02) 9219 5119

Family Relationship Centres and Family Relationship Advice Line

Call 1800 050 321 or visit the Family Relationships Online website.

CatholicCare Careline

Call 13 18 19

Community Justice Centres

Call 1800 990 777

Relationships Australia Mediation Service

Call 1300 364 277

Interrelate Family Centres

Call 1300 473 528

Services Australia (Child Support)

Call 131 272

NSW Registry of Births, Deaths and Marriages

Call 13 77 88