How to Separate? A Legal Guide to Separation

A Guide to Legal Separation in Australia

Legal separation is an important step in ending a legally defined relationship (such as a marriage or de facto relationship). Before separated couples are able to proceed with a divorce order, you must be legally separated first.

Michael Conley Lawyers are experts in family law and have years of experience in navigating the proceedings for divorce and separation.

Define Separated: What is Legal Separation?

According to the Australian family law, separation means that the relationship has broken down and at least one of the parties in the relationship has expressed there is no reasonable likelihood of cohabitation being resumed. In a more general sense, separation simply means you and your former partner are living apart from each other and must have done so for at least 12 months to prove that the marriage or de facto relationship is irretrievably broken down.

Separation in the legal sense is used to apply for a divorce order. To apply for a divorce order, you must be separated for at least 12 months as outlined above. If you were living separated under one roof for any part of that 12 month period additional evidence is required to apply for a divorce order. There are also additional requirements if you were married less than two years.

After a divorce order is made a party has 12 months to commence financial proceedings in court, unless they obtain an order granting leave to apply out of time. In relation to de facto couples, this applies 24 months from the date of separation.

In regards to other legal proceedings, you do not need to be separated for any minimum amount of time to seek property settlement orders, spousal maintenance orders, any ancillary orders of the court, or child support. Parties are entitled to seek order relating to these matters immediately on separation.

Marriage & Separation: Separating from a Husband or Wife

To start the separation, all you need to do is make the decision and communicate it. You can start this process at any time and it does not require lawyers or the Court in any capacity.

However, it would be wise to seek legal advice once you’ve made the decision to separate to get some initial advice. You want to make sure that as the separation proceeds and you approach the point of being able to apply for a divorce order, you are prepared for what needs to happen.

What is a trial separation?

A trial separation is an informal agreement between a couple to live apart from each other. This can be an indefinite arrangement or it can have established time frames around it with a date for assessment. This stage does not require a legal agreement, lawyers or involve the Court.

Many couples may choose to start with a trial separation before making a more permanent decision. While the trial separation occurs, the couple may choose to create certain boundaries as part of the informal agreement, such as marriage counselling or parenting arrangements for example.

Is it better to divorce or separate?

In order to apply for a divorce order, the couple must first begin living apart and show they have separate lives for at least 12 months. This is the criteria set out in Australian family law to establish that the marriage is irrevocably ended.

It is worth noting that living separately does not necessarily mean your living arrangements have to drastically change. You can legally separate and live under the same roof. It is best to consult a family lawyer on the practical steps you will need to take to prove legal separation if both you and your former partner remain living in the same home.

De Facto Separation

What can a de facto claim after separation?

According to the Family Law Act 1975, your de facto partner is treated in an almost identical way to married couples. This could include financial support in the form of De Facto Maintenance (similar to Spousal Maintenance) or a property settlement if there are shared assets at stake.

Legal Separation Australia FAQs

What is the first thing to do when separating?

You will need to seek legal advice prior to entering into the mediation process or making any arrangements with your former spouse, even if the split is quite amicable or you’re still living under one roof. Regardless of the current state of your relationship, you want to ensure the most beneficial outcome for both parties – but especially any dependents affected by the separation.

Australian law stipulates you must try to make these arrangements outside of the Court first, through family mediation with your former partner. There are exceptions to this, however, which include:

  • There are factors that make your case urgent and you do not have time to wade through the mediation process, which can take some time if the split is not amicable.
  • You have experienced domestic violence, also known as family violence.
  • One or both of you live quite far away.
  • One or both of you is seriously, medically ill.

Using family dispute resolution tends to have much better outcomes for everyone involved and can be much more beneficial for the ongoing family relationships and people affected by the separation.

If your case meets the criteria for mediation exception, for example experiencing domestic violence or being significantly ill, then you should seek legal advice as to the best way to proceed with your separation and eventual divorce order.

Who should move out when separated?

Who should move out of the family home when separated is not a straightforward question and doesn’t have a straightforward answer. The fact is there is no requirement for anyone to move out when choosing to separate, provided you are able to meet the conditions of living separate lives while under the same roof.

However, if maintaining existing living arrangements is creating more challenging times and there is a need for one of the parties to move out, the decision of who leaves should be based on the needs of any children involved (not necessarily including children from previous relationships, but dependents from the current relationship) and how best to meet their needs.

If there are no children involved to consider, then who moves out of the property could be based on financial contributions or each of the individual’s personal circumstances. Effectively, who moves should be a decision based on meeting the needs of both parties.

Can you just stay separated forever?

Theoretically, yes, you can stay separated and not move on to applying for a divorce. There are many reasons a couple may choose to remain separated, but married. For example, one such reason could be the cost of divorcing.

There are numerous personal or financial reasons that a couple may choose to stay separated and live separate lives while still legally married. However, in the majority of cases, legally separating does tend to end in divorce.

The Role of a Separation Lawyer

The role of family law experts, like the family lawyers at Michael Conley Lawyers, is to assist clients in navigating the complexities of divorce and separation, and the associated family law matters that inevitably arise.

Family Court and the mediation process requires you to submit applications and various forms to begin proceedings, and have strict time limits to adhere to as well. This can create a lot of pressure and stress for clients, at an already emotionally and financially difficult time.

Our role is to assist clients through the process, help collect appropriate evidence, submit applications and forms to the Court, determine property and financial resources, and mediate on behalf of the client to reach an efficient and beneficial resolution for separating.

If you are wondering how to separate from your partner or spouse, the best thing you can do is to seek legal advice as soon as possible. Michael Conley Lawyers have decades of experience in family court and are a dedicated family law firm – contact us today on (02) 9223 5299 or email to book a consultation.