What are my rights during a separation?
Your rights during a separation depend on your circumstances, but there are several key legal principles in Australian family law that protect you. These rights are designed to ensure fairness and clarity during what can be a challenging time.
Here’s an overview:
1. Right to Equal Parental Responsibility
For Parents: Both parents have equal shared parental responsibility for their children, regardless of separation. This means you both have the right to participate in making major decisions about the children’s welfare, education, and healthcare unless a court orders otherwise.
Living Arrangements: The court focuses on the best interests of the child when determining parenting arrangements. You have the right to seek a fair and practical parenting plan or court order.
2. Right to a Fair Division of Property
Regardless of whose name the assets are in, you have the right to a just and equitable division of property under Australian family law. This includes:
Assets: Homes, vehicles, superannuation, investments, and savings.
Liabilities: Mortgages, loans, and other debts.
Contributions: Both financial (income, savings) and non-financial (homemaking, childcare) contributions are considered.
3. Right to Financial Support
If you are financially dependent on your partner, you may be able to claim spousal maintenance to help you meet reasonable living expenses after separation.
Child Support: The parent who cares for the children most of the time has the right to seek child support from the other parent through the Department of Human Services.
4. Right to Stay in the Family Home
Both parties have the right to stay in the family home unless there is a Court order, even if the property is in one partner’s name.
If staying together is not safe or practical, you may have the right to apply for exclusive occupation of the home, particularly in cases involving family violence.
5. Right to Protect Against Violence or Harassment
If there is a risk of violence or abuse, you have the right to seek an Apprehended Domestic Violence Order (ADVO) or similar protective measures to ensure your safety and that of your children.
6. Right to Privacy and Confidentiality
Your communications with a family lawyer and the mediation process are confidential, ensuring you can seek advice without fear of disclosure.
Financial and personal information must be exchanged honestly during property settlement or parenting disputes, but it cannot be used outside the legal process.
7. Right to Access Superannuation
Superannuation is considered property in a separation and can be split between partners as part of the property settlement, even if it cannot be immediately accessed.
8. Right to Negotiate or Mediate
You have the right to try to resolve disputes through negotiation or mediation before resorting to court proceedings.
Family Dispute Resolution (FDR) is required for most parenting disputes before going to court, ensuring you can reach an agreement amicably.
9. Right to Legal Representation
You have the right to seek independent legal advice to understand your options and ensure your interests are protected.
Legal aid or community legal centres may help if you cannot afford private representation.
10. Right to Make Independent Financial Decisions
You can open a new bank account, manage your own income, and make independent financial decisions after separation.
You also have the right to seek interim financial support if needed, such as spousal maintenance or temporary orders for living expenses.
11. Right to Seek Interim Court Orders
If immediate arrangements are needed, such as access to funds, living arrangements, or parenting schedules, you have the right to apply for interim orders from the court.
What Should You Do?
Seek Legal Advice: A family lawyer can clarify your specific rights and help you take appropriate steps.
Document Everything: Keep records of financial information, parenting arrangements, and communications with your ex-partner.
Prioritise Safety: If there are safety concerns, act quickly to protect yourself and your children. Click here for useful resources.
Every separation is unique, so understanding your rights and taking proactive steps will help you navigate this time with confidence and clarity. Let us know if you'd like guidance on any of these points. You can reach our helpful family law team on 1300 676 267 to book a free 15 minute initial call to determine how we can help.
Disclaimer: The content presented in this article is offered for informational purposes and should not be construed as legal advice or a substitute for professional guidance. If you have questions or require legal assistance, we strongly recommend consulting with a Solicitor to address your individual circumstances.