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Family Law FAQs

What is a common law spouse?
There is no such thing as a common law spouse, regardless of how long you have been together. If you live with your partner you are cohabitees and the legal principles that apply will depend on your circumstances (such as whether you own property together). Matrimonial law will not apply.

If I’ve separated from my husband/wife do they have to carry on supporting the matrimonial home?
Yes, however this is a dependent on your individual circumstances. This is known as interim spousal maintenance or maintenance pending suit and if payment is not made voluntarily, the Court can be asked to order it.

If we get divorced on the basis of 2 years separation is the process quicker/cheaper?
A divorce on the basis of two years’ separation is one achieved by agreement, rather than a ‘fault’ based divorce (i.e. unreasonable behaviour or adultery). The process is the same however, although the petition is slightly more straightforward, and therefore it is not any quicker or cheaper than the alternatives. Getting divorced on the basis of having been separated for two years does not affect your financial claims arising from the marriage, although the change in your circumstances since separation may impact upon these claims.

My spouse/partner and I have separated. How can I get him/her out of the home?
If you own a property jointly you are both entitled to enter (including forcing entry if necessary) and occupy it, unless that right of occupation is withdrawn by an occupation order made by a court (in circumstances where there is violence or risk of violence). Where no such order has been made you can either agree what is going to happen to the property, or seek an order of the court for transfer or sale if you cannot reach an agreement.

Is there such there such thing as a quickie divorce?
No, this is just a term coined by the tabloid media. A straightforward uncontested divorce where both parties cooperate is likely to take the least amount of time to complete. Divorces can take longer where there are complicating factors

Have I committed adultery if I am already separated?
If you are married (whether separated or not) and you have voluntary sexual intercourse with a person who is not your spouse, you have committed adultery.

If I leave the house which I own with my partner, do I give up my rights to the property?
No, your claims against the property will still exist until agreement between yourself and your partner or as determined by a Court, however any claim which you may subsequently make to move back into the property or have the property transferred to you, may be affected. 

Family Team

Lindsey Canning
Director

Alison Gaddes
Associate

Victoria Walker
Family Law Executive

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