Separation FAQ's

1. DO I NEED A FAMILY LAWYER FOR MY SEPARATION OR DIVORCE?

Not everyone needs a Family Lawyer for their separation or divorce. However, once the Family Court makes a decision on the issues surrounding a separation, it can be very difficult to change the decision later on, absent specific circumstances defined by the law. Notwithstanding that people often self-represent in the Family Court, ignorance of the law is not a good enough reason for the Family Court to reverse its decision. Because of this, at the very least, we recommend that you attend a consultation with a Family Lawyer. At Butlers, we offer one hour set price initial appointments for your ease of mind.

2. HOW MUCH WILL A DIVORCE LAWYER COST?

At Butlers a Family lawyer could charge anywhere from $380 to $600, plus GST, an hour. The hourly rate depends on, among other things, the Family Lawyer's experience and the complexity of the case. Before we commence any work on a case, we require a signed Costs Agreement and funds in our Trust Account to be used for payment of future accounts. The initial funds required could be as low as $1000 or as high as several thousands of dollars, depending on the complexity or stage of the case.

3. IN WESTERN AUSTRALIA, WHO DECIDES IF THE CHILDREN LIVE WITH ME OR MY FORMER SPOUSE?

If you and your former spouse are able to agree on the issues surrounding the children, then you and your former spouse will make the decision. If you require some assistance to reach an agreement with your former spouse, you can arrange to attend Family Dispute Resolution or participate in the collaborative law process. If the Children’s Issues are contested then either you or your former spouse will need to apply to the Family Court for a third party (a Magistrate or a Judge) to make the decision. Before you can apply to the Family Court, you are required to obtain a certificate from a Family Dispute Resolution Practitioner, unless an exemption defined by the law applies. The same applies for your former spouse. Keep in mind, that in Western Australia, the Family Court may make an order for you and your former spouse to attend Family Dispute Resolution/Mediation involving disputed issues surrounding the children; therefore, even if you obtain a certificate from a Family Dispute Resolution Practitioner without participating in Family Dispute Resolution/Mediation, you may be required to participate in Family Dispute Resolution/ Mediation later on. This is not true of every contested case and in some cases; the Family Court may not order you and your former spouse to engage in Family Dispute Resolution/Mediation if specific facts are present i.e. domestic violence.

4. HOW CAN I MINIMIZE THE POTENTIAL TRAUMATIC EFFECT THAT A SEPARATION MIGHT HAVE ON THE CHILDREN?

Children may suffer from the emotional upheaval that a separation can cause. In addition to a change in supervision, children may experience a change in their everyday routine and their home environment. Because of this, we encourage people who separate with children to focus not on winning the case but rather, agreeing to terms of the dissolution of the relationship with the best interest of their children in mind. In this scenario, collaborative divorce should be considered because it is an “interest-based” process; therefore, if you and your former spouse have your children's stability and happiness as a goal, then these goals are the forefront when making decisions regarding the dissolution of their relationship.

5. HOW MUCH WILL CHILD SUPPORT IN WESTERN AUSTRALIA COST?

The cost of your Child Support varies because it is calculated using a formula that takes in consideration the costs of raising children, the income of you and your former spouse, and the percentage of time that you and your former spouse care for the children. If you are having issues with Child Support, such as your former spouse is refusing to pay you Child Support, we recommend that you contact the Child Support Agency to assist you in dealing with this. If you and your former spouse agree on the cost of Child Support and you want to formalise this, we recommend that you attend a consultation with a Family Lawyer. Keep in mind, that if you retain a Family Lawyer to settle your Financial Issues and/or your Children’s Issues, the issue of Child Support may not even arise. If you want the cost of your Child Support included in the terms of your settlement, you should specifically instruct your Family Lawyer of this. If you want to learn more about your choices for Child Support, visit this website https://www.humanservices.gov.au/customer/subjects/your-choices-separated-parent. Otherwise, to learn more about the Western Australian guidelines for the costs of Child Support, click here

6. DO I HAVE TO PAY/CAN I RECEIVE SPOUSAL MAINTENANCE?

In Western Australia, Spousal Maintenance is gender neutral. You may receive Spousal Maintenance, if you are unable to support yourself adequately and your former spouse has the capacity to pay you. The same applies for your former spouse, which means you may have to pay Spousal Maintenance if the above applies. When deciding to make orders in relation to Spousal Maintenance, the Family Court will consider a number of different factors such as: the length of the relationship, if you or your former spouse have the care or control of a child of the relationship that is not yet 18 years old, you or your former spouse’s health, and you or your former spouse’s employability. You or your former spouse may seek Spousal Maintenance after separation, regardless of whether you were married or in a De Facto relationship. The issue of Spousal Maintenance is case specific and we recommend that you discuss this issue with a Family Lawyer.

7. IF I DO NOT WANT TO GET DIVORCED, CAN I STOP THE PROCESS?

No, you cannot. You do, however, have a choice in how the divorce can proceed. Because a divorce can occur without your consent, ignoring the process because you do not want it to happen will not stop it – it is just likely to delay it. That is why it is important to seek legal advice from a Family Lawyer to ensure that you understand the process and its potential outcomes, in particular your financial circumstances, for your future.

8. WHICH SETTLEMENT OPTION IS BEST FOR ME?

There are different settlement options. Your best option depends on you and your former spouse's circumstances. In some cases, you and your former spouse will choose to employ two or more of the separation methods. For example, if you both agree on everything except for the issues surrounding the children then the Children’s Issues can be the focus of a contested hearing whilst the Financial Issues can be settled by consent or through one of the alternative outlined processes. We recommend you discuss your options with one of our Family Lawyers.

9. WHAT IS THE DIFFERENCE BETWEEN A CONTESTED MATTER AND A MATTER RESOLVED BY CONSENT IN THE STATE OF WESTERN AUSTRALIA?

In a matter resolved by consent, you and your former spouse have come to an agreement on the issues surrounding the dissolution of the marriage/relationship. In a contested separation, you and your former spouse have not agreed on one or more of the issues.

10. HOW LONG WILL IT TAKE TO ACHIEVE A SETTLEMENT?

The time it can take to settle your separation depends on whether the issue is contested or uncontested and what settlement method you and your former spouse utilise. If you and your former spouse are able to come to an agreement informally or through the use of the collaborative process, the settlement can only take a few months. If the case is contested and has to go to Family Court, the process can take up to 3 years or longer depending on the complexity of the issues and the Family Court’s availability.

11. ARE THERE ANY TIME LIMITS INVOLVED TO SETTLING FINANCIAL ISSUES?

Yes. If you were married then once you have applied for and been granted a divorce order, you have 12 months to apply to the Family Court in relation to your Financial Issues. If you were in a De Facto relationship then you have 2 years from the date of separation, to apply to the Family Court in relation to your Financial Issues.  

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