Separation Laws in Australia: Understanding the Legal Process of Separation Before Divorce

Oct 10, 2023

In Australian law, the term separation refers to the breakdown of a romantic relationship, usually prior to a divorce for married couples, or the end of the relationship for de facto couples.

Separation generally involves living apart and in order to obtain a divorce, a couple will need to be separated and usually live apart for a period of at least 12 months.

This separation period exists in order to demonstrate that the relationship has broken down irretrievably and there is no likelihood of the couple reconciling.


Legal Requirements for Separation

There are no legal requirements for separation as such, but there are legal requirements for divorce to be granted. This means that there are no legal requirements for a de facto couple to be able to separate.

Separation prior to divorce is defined in the Family Law Act 1975 (“FLA”) in section 49(2) to include parties that have resided together while being separated, but generally separation involves living apart.

Couples who have separated but resided under the same roof will need to prove to the Court that they had in fact separated in order to qualify for divorce.

Proving separation whilst living together may require evidence of the parties:

  • sleeping in separate bedrooms;
  • publicly announcing their separation;
  • not attending social events together;
  • not cooking or cleaning together; and
  • keeping their lives separate from each other as much as possible.


Financial Considerations During Separation

Separating can be costly and it is important to make considerations for new and additional expenses. One of you will likely have to move out of the home you share together and rent or purchase another home.

It is likely that even if you move out of the home, if there is a mortgage that you are jointly responsible for, you may still need to pay your half as well.

Additionally, you may need to seek legal advice from a family lawyer and should factor this into future expenses.

It is also important to separate your finances and decide how any bills will be divided. You may need to consider closing joint accounts and opening new separate accounts. It is also a good idea to organise and collate financial documents as you will need to be able to separate assets and liabilities. This means collating documents such as:

  • bank statements for all accounts;
  • property appraisals;
  • share statements;
  • motor vehicle insurance documents;
  • loan statements;
  • company profit and loss statements;
  • credit card statements; and
  • superannuation statements.

Many couples require assistance to separate their assets and liabilities after separation, usually through mediation.

Having these financial documents ready and available for both of you at mediation will enable you both to see the full picture of your assets and liabilities and be able to reach a more equitable division of the asset pool when the time comes.


Parenting and Child Custody During Separation

Navigating parenting during separation can be challenging. It is important to consider what arrangements will be best for the children.

The approach to parenting during separation may be slightly different depending on the age of the children involved.

Some parents seek to have a legally enforceable arrangement and pursue parenting orders to formalise their arrangement.

Only around 3% of parents need to go to court for parenting arrangements, the rest usually agree to an arrangement between themselves or attend mediation or seek help from lawyers or mediators.

A parenting plan is an alternative to parenting orders which is not legally enforceable but is usually less stressful and cheaper than going to court if the parties can work together.

Before parenting orders are made, it is important to consider an arrangement which promotes the best interests of the child. For older children, this might mean taking their wishes on board when deciding the shared care arrangement.

Although separation is an extremely stressful and emotional time, it is important to think clearly and not allow children to be impacted by the tension of the situation. This means it is important to avoid:

  • Putting children in the middle of any disputes;
  • Exposing children to conflict between their parents;
  • Degrading the other parent in front of the child;
  • Making the children feel like they have to choose one parent or the other;
  • Not taking their wishes on board when appropriate to do so; and
  • Disrupting their routine unnecessarily.

It may also be a good idea to arrange for the children to receive help from counsellors, psychologists or other professionals, as separation can be particularly stressful for children even if they don’t outwardly seem stressed.


The Role of Family Lawyers in the Separation Process

The separation process can be extremely daunting. A reputable family lawyer can put your mind at ease and guide you through the process step by step.

In the early stages of separation, lawyers can assist with preparing for mediation. They can also assist with contacting the other party or other party’s lawyers.

As family law is an emotionally driven area of the law, it is important to seek advice from a family lawyer to ensure your expectations are realistic, thereby assisting you to achieve a reasonable outcome.

Should the matter proceed to court, it is imperative to seek legal advice from a family law expert as family law is a very technical and complicated area of the law.

How Separation Differs from Divorce

Separation does not finalise the end of a marriage. Separation is the required prerequisite before a divorce can be granted, they are not the same thing. Divorce on the other hand is the formal legal ending to a marriage.

One particular issue with being separated but not divorced is that if you die and you’re still legally married to your former spouse but are separated, your former spouse may be entitled to bring a claim against your estate upon your death.

If you own a property as joint registered proprietor with your former partner, you will need to instruct your lawyer to sever the joint tenancy if you want to avoid your former partner being able to claim your half of the property by way of survivorship application following your death.

Once you separate, it is advisable to instruct your lawyers to draw up a new Will to ensure that if you die before your family law property settlement, that your wishes regarding your property are able to be followed.

Matthies Lawyers are experienced in estate planning matters and able to assist you with this.

Another notable if obvious problem with staying separated instead of being formally divorced is that you cannot marry someone else until the divorce from your former partner has been finalised.


Emotional and Psychological Considerations During Separation

Separation can be extremely distressing, especially in the early stages when the breakdown of the relationship is still raw for both parties.

Although it can be difficult, it is important to think rationally during the process.

It can be beneficial to ease the burden of separation by engaging a family lawyer and by seeking professional help from a psychologist or counsellor.


Preparing for Separation and Finding Support

When preparing to separate from your partner, it is important to seek legal advice, gather your financial documents and make parenting arrangements.

It is also important to consider who will live in the family home and how certain bills will be paid.

It is also a good idea to change passwords and start opening new bank accounts separately.

For support it is important to seek advice from a family lawyer, alternatively, the following resources may be useful:


At Matthies Lawyers, we are here to cater to your family law and estate planning needs. Our team of family lawyers proudly serves clients in South Yarra, Toorak, Windsor, Prahran, Armadale, and Richmond.

Contact us today for expert legal advice and support or call +61 3 8692 2517.

Kate Scolyer – Solicitor– Matthies Lawyers

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.