What we help with / Separation and property
Separation and property
Australian family law explained in Polish and English: divorce, property and children under the Family Law Act 1975 (Cth). Western Australia has its own family court and its own de facto property law.
In short
- You can apply for divorce after at least 12 months’ separation, even if you lived under one roof for some of that time.
- File a property application no later than 12 months after the divorce takes effect. De facto partners have 2 years from the end of the relationship.
- There is no set percentage: the court weighs contributions, current and future circumstances, and what is just and equitable.
- Once parenting orders exist or proceedings have started, taking a child overseas without written consent or a court order is a crime. The Hague Convention applies between Australia and Poland.
- Cost and next step: you receive a written quote before work starts. Call 1800 776 529 or write to us; we reply within one business day.
In an emergency: call 000. For confidential support with domestic, family or sexual violence, 24 hours a day, call 1800RESPECT on 1800 737 732.
Divorce: 12 months apart
The only ground for divorce is that the marriage has broken down irretrievably. The court accepts this if you lived separately and apart for at least 12 months before filing, with no reasonable likelihood of reuniting.
You can be separated while living under one roof. You then need to show that the marriage really changed and file an affidavit. The court also recommends one from an independent person, such as a relative or neighbour.
Divorce applications are filed online with the Federal Circuit and Family Court of Australia through the Commonwealth Courts Portal. At least one of you must be an Australian citizen, be domiciled in Australia, or have lived here for the past 12 months. The divorce takes effect one month after the order, and it does not decide property or children.
Property: the time limits
After a divorce, a property settlement application must be filed within 12 months after the divorce took effect. For a de facto relationship, the limit is 2 years after the relationship ended.
After that, you need either the other party’s agreement or the court’s permission (leave) to apply. The court can give leave only if you or a child would otherwise suffer hardship.
How property is divided from 10 June 2025
Changes made by the Family Law Amendment Act 2024 (Cth) took effect on 10 June 2025. The Act now sets out the steps the court follows. The court:
- identifies each party’s property and debts;
- assesses contributions, financial and non-financial, including as homemaker and parent, and the effect of any family violence;
- considers current and future circumstances, such as age, health, income, the care and housing of children under 18, and deliberate or reckless waste;
- makes an order only if it is just and equitable.
The Act does not start from an equal split, and the new rules also apply to couples who reach agreement outside court.
Children: arrangements and travel overseas
For parenting arrangements, the child’s best interests are the paramount consideration. Before applying to court, you usually must try family dispute resolution and file a certificate from the practitioner. Exceptions include family violence and a risk of child abuse.
Once parenting orders are made or proceedings start, you must not take the child overseas without written consent or a court order. Doing so is an offence with a maximum penalty of 3 years’ imprisonment.
The Hague Convention on the Civil Aspects of International Child Abduction is in force between Australia and Poland. A parent can ask the Central Authority to seek the return of a wrongfully removed or retained child under 16. In Australia, the Central Authority is in the Attorney-General’s Department.
A divorce granted in Poland
Australia recognises an overseas divorce if, when the case began, one of you had a link with that country listed in s 104. A Polish divorce qualifies if, for example, the spouse who did not start the case was a Polish citizen or lived in Poland. Recognition can be refused if a party was denied natural justice, or if it would be manifestly contrary to public policy.
A recognised Polish divorce is valid in Australia, so you do not need to divorce again here. It does not divide your property in Australia, and how the time limits apply after an overseas divorce needs advice on your facts.
Western Australia, and how we help
In Western Australia, family law cases go to the Family Court of Western Australia, and de facto property falls under Western Australian law. We do not take family law matters from Western Australia.
We advise on divorce, property and children, negotiate agreements and prepare consent orders. Radek appears in court and, where a case needs it, briefs a barrister.
Questions
Have another question? Phone 1800 776 529 or send us a message.
Yes, after at least 12 months living separately and apart, with affidavits explaining how your lives changed.
Yes, if one of you meets the citizenship, domicile or 12 months’ residence test. Where you married does not affect that test.
Ask the other party to consent, or apply for the court’s permission. The court must be satisfied that you or a child would suffer hardship without it.
Law referred to
- Family Law Act 1975 (Cth) ss 39(3), 41, 44(3), 44(4), 44(5), 44(6), 48, 49, 55, 60CA, 60I, 65Y, 65Z, 79, 90RA, 90SK, 90SM, 104.
- Family Law Amendment Act 2024 (Cth) s 2.
- Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 2.
- Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983).
- Family Court Act 1997 (WA).
Radek Dajer is an Australian lawyer and notary public who speaks Polish. He practises Australian law and does not advise on Polish law; for questions of Polish law, we bring in a lawyer or notary in Poland.
Separated? Check your time limits before they pass.
Call 1800 776 529 or write to us, and we will answer within one business day.
Phone: 1800 776 529
Email: info@polishlawyer.com.au
Hours: Monday to Friday, 9 am to 5:30 pm
Office: 435 Nepean Highway, Frankston VIC 3199