Married and de facto couples share the same legal rights but the manner in which a married versus a de facto relationship are ended different. The same rules also apply equally to married or de facto same-sex and heterosexual couples. De facto couples are not necessarily required to make a formal legal application to finalise the ending of their relationship but they are still equally entitled to the same rights available to married couples relating to property, maintenance, parenting orders and child support.

To obtain a divorce, you and your partner need to have been separated for at least 12 months. Legal assistance should be sought before this 12 month period in order to gain an understanding of how the divorce process works, what each parties obligations are and what may be the likely outcome of proceedings.

It is important to note that various legal processes associated with separation can be carried out separately to a divorce. The relevance of each of these processes will be dependant on your circumstances, they may include:

• The division of property
• Spousal maintenance
• Arrangements relating to Parenting and Children (child support, custody, spend time with orders)

Property settlements can be a complicated legal process and includes consideration of all kinds of property and financial resources such as real estate, shares, vehicles, furniture, superannuation, future pension entitlements etc. Splitting such assets through a property settlement requires consideration of many factors which include:

• Each party’s financial contributions (this includes contributions made prior, during and following the end of the relationship)
• The domestic contributions of each party
• The future needs of both parties
• The needs of any children and the impact of those needs on the parent’s
• What division of property would be considered fair?

If you and your partner separate and you have children you do not necessarily have to go to court. It is advisable for people to draft a formal parenting agreement and seek appropriate advice from a lawyer.

When making a parenting agreement, parties can make decision relating to:

• A child’s living arrangements
• The extent of time spent by a child with each parent
• The manner in which a child’s long term or decisions should be made (this may include decisions relating to the child’s health or education
• Arrangements for birthdays, holidays and other special days in the child’s life
• The contact a child will have with other parties such as their grandparents

A parenting agreement may be made privately with your partner or through by each party’s legal representation. Parenting agreements may take several forms, they include:

• An informal verbal or written agreement: these agreements are made outside of court and are not legally enforceable. This is not an advisable long term option.
• A parenting plan: these agreements a formulated by both parents, typically with the assistance of a third party, they are not legally enforceable. Parenting plans, whilst not enforceable in court, are used as a reference in court proceedings should they occur.
• A consent order (also known as a parenting order) – these are legally binding documents that are lodged in a court. Consent orders defines the responsibilities of each party. A consent order can be applied for by not only a child’s parents but also their grandparents and any other party that is concerned with the child’s welfare, care and development.

Where making a parenting agreement outside of court is unachievable you may need to go to court and obtain a parenting order determined by the court. All of the court’s decisions regarding parenting arrangements will be determined on the basis of what it in the best interest of the children. Determining what is best for children is a complex task and requires consideration of a several factors including factors such as:

• the child’s relationship with each of their parents
• the need to protect a child from physical or psychological harm
  any views expressed by the child
• A parent’s attitude to a child and the responsibilities of parenthood