Separation

Unlike getting a divorce, there’s no legal process involved with separation. Both parties do not need to agree. There are no documents to complete and no signatures required.  Generally, it is enough for one party to communicate to the other party that the relationship (de facto or marriage) has ended. Often one party will move out but that’s not always the case. Parties can be separated while still living together.

Before you separate

Before you decide to separate you should consider the following:

1. Do it safely. If your safety is an issue, get as much advice and support as you can before you separate. A family lawyer can give you advice and provide the appropriate referrals if required.
2. Record the date you separated from your spouse/partner. Importantly, you can be separated but still living under the one roof.
3. Try to keep things civil – especially if there are children involved.
4. Make sure you have adequate support from family and friends.
5. If privacy is an issue, change passwords for your personal accounts; for example, online banking accounts, your email account and social media accounts.
6. Gather all of your personal paperwork and valuables and keep them safe. These include things like your birth certificate and your passport.
7. Get family law advice and do your research about where you stand. The advice may influence your decision about timing, and you may avoid doing things that could unnecessarily inflame the situation.

Why should I record when we separated?

If you were married, the period you have been separated is used to determine when you can get a divorce. If you were in a de facto relationship, the period you have been separated is used to determine the date by which you must apply for property settlement.

Sometimes there will be a disagreement about the actual date of separation. A few days or maybe even months might not make too much of a difference to the legal outcomes. However, if it’s necessary to determine the date of separation, some of the relevant considerations may be:

1. When did the parties stop sleeping in the same room?
2. Is there an ongoing sexual relationship?
3. Do the parties continue to socialise together outside of the house?
4. Are finances still intermingled?
5. Are the parties still caring for one another – cooking, cleaning, laundry?
6. Has anyone notified Centrelink, family or friends about the separation?

Marriage and separation

A common misconception is that you have to wait 12 months before you can divide your property and make arrangements for the care of your children. That’s not the case and negotiations can start once you have separated (as long as you feel up to it).

The “12-month rule” relates to applying for a divorce to legally end your marriage. In Australia, you must be separated for 12 months before applying for a divorce.

De facto separation

There’s no legal process required to end a de facto relationship – separation is enough.

If there’s property to be divided, be aware that there’s a 2-year time limit to make an application for property settlement/maintenance. There’s still a chance to apply after the two years but there’s no guarantee that you will get an order to “proceed out of time”.

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

You may wish to revisit 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.