This guide from our team of family lawyers in Perth answers 22 of the most common family law questions that we hear many couples ask during separation, providing clear, practical information to help you navigate the process.
Separating from a partner can be one of life’s most challenging experiences. Questions about divorce, property, finances, children, and spousal maintenance can feel overwhelming, especially if you’re unsure where to start.
While family law in Western Australia can seem complex, understanding your rights and options is the first step toward clarity and peace of mind.
Whether you’re considering divorce, planning property settlement, or arranging parenting plans, knowing your options can reduce stress and help you make informed decisions.
22 Common Family Law Questions In Australia Answered
1. How long do I need to be separated before I can apply for divorce in Australia?
In Australia, couples must be separated for at least 12 months before applying for a divorce. This period does not necessarily mean living in different homes; couples can be considered separated while sharing the same house if the relationship has clearly broken down. Understanding this requirement is often the first step in navigating the divorce process. Read more about how long you have to be separated before divorcing here.
2. Do we have to live in separate houses to be considered separated?
No, living apart is not required for separation. The law recognises that couples can be separated while living together if their relationship has irretrievably broken down. Evidence of separation can include separate routines, finances, and emotional independence.
Understanding the legal definition of separation ensures that divorce applications proceed smoothly and that both parties’ rights are protected. Consulting a family lawyer can help couples understand how to document separation correctly, especially when children or property are involved.
3. Can I oppose a divorce application?
Divorce in Australia is no-fault, which means the court does not assign blame for the breakdown of the marriage. Opposing a divorce is only possible in very limited circumstances, such as if the marriage has not genuinely ended. Anyone considering opposing a divorce should seek legal advice from a trusted divorce lawyer. They can explain your rights, potential consequences, and other options.
4. What is a no-fault divorce and how does it work in Australia?
A no-fault divorce means that the court does not consider who was at fault for the breakdown of the marriage. In Australia, this is the standard approach, reflecting the principle that a marriage can end without blame or conflict. Couples must meet the separation requirement of 12 months to apply for a divorce.
No-fault divorce focuses on practical outcomes such as property division, spousal maintenance, and parenting arrangements, rather than legally assigning responsibility for the breakdown of the marriage.
5. How is superannuation split when a relationship ends?
Superannuation is considered part of the property pool during a separation and is subject to division during a property settlement. The court aims for a fair and equitable outcome, which may not always mean a 50/50 split.
Family lawyers often recommend that couples obtain detailed superannuation statements and consider both the present and future value of superannuation entitlements. Understanding how superannuation is treated under Australian family law ensures that both parties can make informed decisions about their financial future.
6. Are assets always split 50/50 in a divorce?
Not necessarily. In Australia, property division after separation is guided by the principle of fairness and considers each party’s contributions and future needs. This includes financial contributions, homemaking, parenting, and earning capacity. A 50/50 split is not automatic.
7. How is superannuation divided during a property settlement?
During a property settlement, superannuation is treated as a divisible asset. The court may order one party to transfer part of their superannuation to the other, aiming for an equitable outcome. Factors for dividing superannuation in divorce include the duration of the relationship, financial and non-financial contributions, and future needs. Your family lawyer should be able to provide guidance on calculations, legal procedures, and agreements, and can assist in obtaining a formal consent order to make the settlement legally binding.
8. How long do we have to finalise property settlement after divorce?
In Australia, property settlement can be finalised at any time after separation, but there are time limits. For married couples, applications must generally be made within 12 months of divorce being finalised. For de facto couples, the limit is usually two years from separation. Consulting a family lawyer early ensures deadlines are met and prevents complications.
9. What is spousal maintenance and who is eligible?
Spousal maintenance is financial support paid by one partner to the other after separation or divorce when the recipient cannot adequately support themselves. Eligibility for spousal maintenance depends on factors such as income, earning capacity, age, health, and the standard of living during the relationship.
10. How do we decide where the children will live?
Determining children’s living arrangements should focus first and foremost on the best interests of the child or children. This should include their stability, safety, and the ability to maintain relationships with both parents. Parents are encouraged to negotiate arrangements directly or if needed, through family mediation, which can lead to mutually acceptable parenting plans without court intervention.
Deciding where children live can also take into account practical matters such as distance from schools and support networks, their developmental and emotional needs, and even their own views can sometimes be taken into consideration, by parents or the family court.
11. What does “best interests of the child” mean?
The “best interests of the child” is the primary consideration in all parenting decisions. Factors include the child’s safety, emotional needs, relationships with each parent, and the impact of proposed arrangements on their wellbeing.
There are currently 6 best interest considerations that are looked at by the family court. These are:
- What arrangements will promote the safety of the child and each person who cares for the child (including safety from family violence, abuse, neglect, or other harm)
- Any views expressed by the child
- The developmental, psychological, emotional and cultural needs of the child
- The capacity of each person who has (or is asking to have) parental responsibility for the child to provide for their child’s developmental, psychological, emotional and cultural needs
- The benefit to the child of being able to have a relationship with the child’s parents, and other significant people in their life, where it is safe to do so, and
- Anything else that is important to the individual situation of the child
12. Can I change my child’s surname after separation?
Changing a child’s surname requires consent from both parents or a court order (where the child is under 18 years old).
The general rule is that whoever is named as a parent on the child’s birth certificate must agree to the name change. If parents cannot agree, they can take the matter to the Family Court of WA and get a judge to decide if the name change is in the best interest of the child.
When deciding on a name change matter, the court will look at:
- the reasons for wanting to change your child’s name,
- the short-term and long-term effects of any change,
- any confusion of identify for your child if their name is changed or remains the same,
- any embarrassment likely to be experienced by your child if their name is changed or remains the same,
- the effect the name change would have on their relationship with the other parent,
- any views the child has expressed about the name change,
- the effect of frequent or random name changes,
- the amount of time the child has spent with the other parent and is likely to spend in the future, and
- how strongly the child identifies with each parent, and with any step, blended and extended families.
13. Can we create our own parenting plan without going to court?
Yes, parents can develop their own parenting plan outlining living arrangements, education, holidays, and decision-making. While not legally binding, a parenting plan can guide families and reduce disputes.
14. What is the difference between a parenting plan and a parenting order?
A parenting plan is a flexible, voluntary agreement between parents, while a parenting order is legally enforceable and issued by a court. Parenting orders carry legal consequences if not followed, whereas parenting plans rely on mutual compliance.
Find out more about the difference between parenting plans and consent orders here.
15. What happens if one parent wants to move interstate or overseas with the children?
Relocating children requires consideration of their best interests, including relationships with both parents and the impact of the move. Family lawyers can advise on legal obligations, consent requirements, and how to apply for a court order if agreement cannot be reached
16. Do I have to attend family mediation before going to court?
In many cases, the court expects parents to attempt mediation or dispute resolution before filing parenting applications, unless there are safety concerns or family violence issues.
17. What happens if we can’t agree at family mediation?
If family mediation does not result in agreement, you can apply to the family court to help you settle matters. Mediation can still be useful to help you reduce the number of issues to decide on.
For example, you could settle matters related to who gets what property wise at mediation, but not agree on where the kids should live. This can make court proceedings more efficient and less costly if you have fewer matters to bring to court after mediation.
18. What happens to pets after a separation?
Until recently, pets were generally treated as property under Australian law, so ownership was determined through negotiation or property settlement.
However as of June 2025, reforms were made to the Family Law Act 1975, and the way pets are treated has shifted from property to companion. This change reflects the special role that pets play in our lives and the court will now consider several factors when determining who gets the pets when you separate.
These include:
- how the pet was acquired
- who owns the pet currently
- who provides the majority of the day-to-day care
- any emotional attachment to all family members
- who can take care of the pet moving forward
- any history or neglect or abuse of the pet
- whether the pet has been used as a means of control for coercion or in family violence incidents
We wrote an article about pets and divorce for Best Pet Buys which you can read online now.
19. How is child support calculated?
Child support is calculated using a formula that considers each parent’s income, the number of children, and care arrangements. Unfortunately, there is no set formula and this is done on a case-by-case basis as every family has unique circumstances to take into account.
Family lawyers can provide guidance on accurately determining obligations and applying for child support through the Child Support Agency.
20. What if my ex refuses to pay child support?
Non-payment of child support can be addressed through the Child Support Agency or family court enforcement orders. We’ve covered this topic in depth on our blog post here – My Ex Has Stopped Paying Child Support – What Can I Do?
21. Can my ex claim my inheritance after divorce?
Typically, inheritances received after separation are not considered part of the property pool unless they have been mingled with joint assets or used for family purposes. It would be prudent to consult with a family lawyer about protecting future inheritances and addressing the likelihood of future disputes arising. You can also read more about this on our blog here – Can My Ex Claim My Inheritance After Divorce?
22. Can I get spousal maintenance after separation?
Spousal maintenance may be payable if one partner cannot reasonably support themselves after separation. Eligibility depends on income, earning capacity, and future needs. Family lawyers can guide you on your eligibility for spousal maintenance, applying for spousal maintenance, negotiating agreements, or seeking court orders related to financial support when you divorce.
Separation and divorce are never easy, but you don’t have to face them alone. Consulting experienced family lawyers can help you understand your rights, protect your interests, and create practical solutions for your family.
If you have more questions about divorce, property settlement, child arrangements, or spousal maintenance, Hickman Family Lawyers offer a free 15-minute information call to help you explore your options and take the next step with confidence.
Book your call today and get the guidance you need to move forward with clarity and support from our family lawyers in Perth.
