Separation

Separation, in a family law context, is the ending of an intimate partner relationship. Unlike marriage and divorce, there is no legal process to separation. This lack of legal process can leave you unsure about what to do next.

Things to consider before and after separation

Separation affects everyone differently, and it can be difficult to navigate a way forward.

Once you separate, you and your partner will need to make decisions about practical issues concerning your children and assets/property. Where you and your partner cannot agree on how to move forward, it is a good idea to get legal advice as to your entitlements and obligations.

Some things to consider when separating can include:

• Where your children will live and who will take care of them;
• What time will the children spend with each parent;
• What, how and when you will tell you children, other family members and friends;
• How you and your former partner will support yourselves and your children;
• Who will stay in the house;
• How will the rent/mortgage be paid;
• What will happen to any joint bank accounts/assets;
• What will happen to the house, car, furniture, pets and other property;
• Whether you have concerns for your or your children’s safety and if so, make a safety plan;
• Ensuring that you have access to your personal paperwork and valuables and that you can keep them safe (for example your passport and birth certificate);
• Whether your Will and/or Power of Attorney is appropriate;
• Whether it is necessary to contact your bank or financial institution to stop joint funds being removed or liabilities increased;
• Whether your online accounts were linked together (for example, banking or social media) and if needed, change your passwords to ensure privacy; and finally
• Getting some family law advice and doing some research about where you stand. Legal advice can help you understand your entitlements and obligations in relation to separating and can make the process much more straightforward.

Separation for married couples

For married couples, parties must wait twelve months from the date of separation before they are able to apply for divorce. There is no waiting period before parties can start talking about, negotiating and finalising parenting arrangements and property settlement.

Separation for de facto partners

There is no legal process to separation in a de facto relationship.

There is a two year limitation for de facto couples to make an application for property settlement. Although it is still possible to apply after two years, the circumstances where the court will allow this are limited.

Recording when you separated

Due to these time restrictions and limits, it is important to record the date that you separated. Sometimes parties will disagree as to the actual date of separation, so it is useful to have your own record.

Some things that the court will consider when determining the date of separation can include:

• The sleeping arrangements before and after the date of separation;
• Whether there is an existence of a sexual relationship;
• Who is doing the household chores (are the parties still caring for one another);
• Are the parties continuing to share meals together;
• How do the parties represent themselves (as separated or as a couple) – have they told friends/family/Government agencies (e.g. Centrelink) about the separation; and
• If the parties are going on holidays since separation (and whether those holidays were taken together).

You should consider updating your Will, Power of Attorney and/or Binding Death Benefit Nominations

You should consider updating your Will and/or any Power of Attorney to make sure your spouse/partner is not listed as an executor or beneficiary under your estate or holds Power of Attorneys for you.

Depending on the wording of your Power of Attorney, your spouse/partner could potentially sell any assets you currently own while being your authorised agent.

You should also review the beneficiaries of any life insurance policies and Binding Death Benefit Nominations of your superannuation.

We can help you update your Will and/or any Power of Attorney after separation.

How we can help

Friends and family are a great support to lean on during separation in helping parties to come to terms with the change in their lives. Parties should also consider seeking out trained help, whether that be legal, psychological, economic or career assistance as is necessary to provide a smooth transition.

Legal advice will help you understand the law relating to your family law matter and help you settle and formalize your arrangements. Receiving expert legal advice can equip you with the knowledge you need to make empowered and practical decisions about your next steps.