Hi there. When a married or de facto couple separates, the parties are free to reach an agreement on how their assets will be divided between them. If children are involved in a separation, the parents are also free to reach an agreement on parenting arrangements.

Property and income

If you and your wife can reach an agreement on how to divide the property (including who gets the family home), there is no need to go to court. However, you can apply to court if you want to make the agreement binding, or if you are unable to reach an agreement on how to divide your property. There is no set formula used to divide a couple’s property, but the court will consider things such as the direct and indirect financial contributions of each party to the marriage, non-financial contributions, and the future needs of each spouse. The court’s decision will be one that the court considers to be just and equitable based on the facts of your case.

This means you may be able to move back into the family home and ask your wife to move out, but you would need to negotiate this with her. If you cannot reach an agreement, you would need to apply for court orders to this effect as part of a broader application for division of assets.

If you cannot meet your own reasonable expenses from your personal income or assets, you may be entitled to receive spousal maintenance from your wife, depending on her income. Similarly, if your wife is unable to support herself, you may be liable to pay spousal maintenance to her.

Parenting arrangements

You can negotiate parenting arrangements with your wife. This is called a 'parenting plan', which is a signed, written agreement that can cover anything relating to how your children are parented. It can be created and changed at will without court proceedings if both parents agree to the conditions in place. However, parenting plans are not legally enforceable so there would be no legal consequences if the terms are breached. A ‘consent order’ is required from a court to make parenting arrangements binding.

If you cannot reach an agreement with your wife about parenting arrangements, you can apply to court for a ‘parenting order’, which is an order made by the court specifying the new parenting arrangements for your children. A court will make its decision based on what is in the best interests of the children.

In your situation, as with the family home, you are free to negotiate shared custody of your children. If you cannot reach an agreement, you would need to apply for parenting orders from the court. Depending on whether you take partial custody of your children, you may be entitled to receive welfare benefits as a single parent. If you do not take custody, you will still be required to financially support your children by paying child support. You should contact the Department of Human Services for more information (www.humanservices.gov.au).

Suggested way forward

If you cannot reach an agreement with your wife about financial and parenting arrangements, you should consider speaking to a family lawyer who can properly assess your situation and advise you of your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.