How to separate from your spouse or partner in Australia (and avoid the common missteps)
The separation process in Australia (married or de facto)
Separation is hard and it can be a long process. Here we share with you what we know from supporting people like you every day about how to separate from your spouse or partner, and avoid the most common missteps in Australia.
We see the impacts of decisions that even the most educated and intelligent of people make. We want you to avoid that so here you can expect to learn:
- How do you officially separate in Australia – what is required?
- When early amicable decisions can prove problematic later on
- How to separate from your spouse while living together
- How to separate when you have children
- Family violence: how to protect yourself and your children; and
- Separating finances & assets: What to know before discussions
How do you officially separate in Australia?
Whether you are married or in a de facto relationship, the date of separation is important to be on the same page about. This is because certain steps can only be taken once a certain amount of time has passed from the date of separation.
If in a de facto relationship, there are constraints relating to the division of property. That is, the property settlement must be filed and finalised by the Court (and turned into Consent Orders) no later than 2 years from the date of separation. Ideally you want to have it completed earlier for a multitude of reasons (as we explore below)
If married, there is a waiting period of 12 months from the date of separation, before a solo or joint application for divorce can be filed with the Court. If there is a dispute about the actual date of separation, which there often is.
Some people believe the date of separation is the date one of them moved out of the family home, others argue that it was the date they expressed their desire to divorce or call time on their relationship. Often there can be disputes down the line about the date of separation. While this might seem unusual, it can become a central issue later on when determining eligibility to file paperwork (filing applications with the Court) that have timelines set by law. If you don’t agree on the date of separation, then applications for divorce, as an example, may not be permitted by the Court at that point in time. Subsequently, there may be a need to prove sufficient evidence for the Family Court to determine the date of separation which typically incurs time and costs.
When answering the question “How do you officially separate in Australia?”, divorce is the most commonly referenced answer, but for non-married relationships coming to an end, as well as marriages, there are many other elements that need to be considered to separate completely. They typically include, but are not limited to:
- A Financial Agreement (how assets & finances are to be split)
- A Parenting Plan or Parenting Agreement (if you have children together)
Whether you are both on the same page or not, about separating, about children or finances, the decisions made in the early stages of separation, without family law advice to guide you, are often the most problematic. Here’s why…
When decisions made early can be problematic (and the hardest to undo)
Many separated people make decisions together about finances and how they will share time with their children early on in an amicable fashion. Too often, later on, they learn why they maybe shouldn’t have agreed to something, and their amicable separation turns poorly because one person backflips on the initial agreement. This can trigger conflict where there was little, increase existing conflict and cost more time and money overall.
We know that people delay getting family law advice because they have concerns about incurring legal costs too early or believe a lawyer is only needed if they disagree or something goes wrong.
In reality though, an hour with a family lawyer to get some initial advice and then take the right steps, is far more cost effective than coming to us with a problem we need to solve.
We see that people separate most effectively, with the least amount of conflict and cost when they have first sought legal advice from a family lawyer. Only once they have learned about their specific entitlements and obligations, can they make the best decisions.
It is almost always cheaper than engaging a lawyer at the end when it’s required legally – only to then learn why the agreement is problematic. If the agreement needs to be changed later on – which in our experience happens a lot because the consultation provides them with insights that they cannot ignore – it’s harder to undo.
How to separate from your spouse while living together
Separating from your partner while continuing to live under the same roof is a common scenario, particularly where there are children or moving out is not suitable for one reason or another.
As detailed above and throughout this page, being on the same page about the date of separation is of significant importance. Clarity about the date of separation can become murky when people live together while separated. Sometimes there are situations where one person says the date of separation is the day they discussed it, while the other person may believe the date of separation was the day that they or the other person moved out.
How to separate when you have children
One of the most common assumptions among separating parents is that equal time, typically a week-about arrangement, is fair. While 50:50 time with your children might genuinely seem like the best and most amicable approach, this is not always the case, particularly when you have children who are young, and not of school age.
Child development research and the approach of the Family Court in Australia both recognise that young children form primary attachments to one caregiver. Extended time away from that primary attachment figure can be distressing for a child and, over time, can affect their wellbeing and development.
This does not mean the other parent is not entitled to meaningful time with a young child. What it does mean is that the nature and structure of that time may need to reflect where a specific child is developmentally, rather than what feels right, equal or fair to you as parents.
For this reason, getting advice before agreeing to a schedule or plan, rather than after, means you go into those discussions informed.
When parenting arrangements fail
One of the more significant risks of agreeing on parenting arrangements without first seeking advice from a family lawyer, is how difficult it is to pull back on an agreed position later on.
A common scenario is this…
Parents agree to equal time with their child. Over time, one parent notices that the child is unsettled or distressed. The parent wants to revisit the discussions about time but the other parent, who has had no problems in their own care, says the issues are not present with them, so they shouldn’t reconsider the arrangement.
Many times this is where there is no agreement to adjust the arrangements,then the only path is to go through the Family Court processes, spending thousands to try to resolve it.
When you speak to a family lawyer who works exclusively in family law before agreeing, you can learn from their insights into the law and what they see happening in other cases. This helps parents like you get a fuller picture in the context of Australian family law, before coming to an agreement between yourselves.
Where there is family violence: How to protect yourself and your children before and during separation
FVO’s (Family Violence Orders in the ACT), and ADVO’s (Apprehended Domestic Violence Orders in NSW) are civil protection orders available to anyone who has a fear for their safety or has a fear for the safety of their children.
If you have genuine safety concerns about yourself or your children, we strongly encourage you to seek urgent legal advice. The intersection between Protection Orders and family law proceedings is complex.
The approach taken in the early stages can have significant consequences for both the protection outcome (which is heard in the Local Court) and the subsequent family law matter (heard in the Family Law Court).
Regardless of the progress of any other related matter, if at any time you or your children are in danger, call 000 immediately.
What not to do
We are aware (as is the Court) that in some cases people apply for Protection Orders (such as FVO’s or ADVO’s) to falsely accuse the other parent of violence, to aid their personal goal in their family law matter. Protection Orders exist for the purpose of protection, not as a way to restrict the other parent’s time with a child where there is no genuine safety concern. If someone has suggested this to you, know that using family violence proceedings for a purpose other than protection can be characterised as an Abuse of Process. The consequences of misuse are significant. The consequences in the Family Court can be severe and the outcome may be significantly worse for the person found to have abused the process.
Separating finances & assets: What to know before discussions
Agreeing, verbally or in writing, to what you both believe is fair, about what you each should walk away with, without the benefit of family law advice, is a common area of significant contention.
While we have explored the processes in managing money, expenses and how to divide assets, in other articles listed at the bottom of this page, the key message, like those above, is that it is harder to pull back on an agreed position later on.
One issue that commonly arises later on, relates to valuations of assets. For example, early on both people agree that a property is worth $1m but when a proper valuation is done later on, it reveals that the market value is $1.5m, meaning the property split may need to be reassessed. This may be due to an inaccurate prediction or, if time has passed, the property has increased in value as the market has changed. An independent valuation is one way to avoid that particular issue, however there are other ways in which an agreed property settlement can become untenable once you are better informed from a legal perspective.
There are also several other factors that must be considered when determining “who gets what” and a process that should be followed to formalise a Financial Agreement.
Contemplating separation & post-separation
Not everyone we speak to has decided to separate. We often have people come to us who express something like this:
“Things are rocky, we’re going to counselling, I just want to be a bit prepared.”
So, whether you are currently separated or unsure of what may be ahead for your relationship, it is early advice from the best sources that can make all the difference for your immediate and long-term future.
Separation isn’t easy by any measure, but it is tailored family law advice that can help make the weeks and months ahead far easier than it might otherwise be.
Related: How to divide assets in a divorce or de facto separation
Understanding de facto relationship break up entitlements [Australia]
Managing finances & paying the mortgage after separation
How to leave an abusive partner or spouse
Family farm divorce (& de facto separation): What farming families & farm shareholders should know
Parenting, Protection Orders & reporting family & domestic violence [ACT & NSW]
We assist individuals with pre-separation and post-separation advice. Our family lawyers are highly experienced in providing bespoke advice relating to your specific needs. To make an appointment with one of our lawyers click here or to learn more about these services and related separation matters, visit this page.
Disclaimer: The information in this article is general in nature and is not a substitute for independent legal advice from a family lawyer.
This information is correct as of the date of publishing and is relevant for people in these states and territories of Australia – ACT, New South Wales, Queensland, Victoria, Tasmania, Northern Territory and South Australia.
