Separation After a Marriage Or De Facto Relationship in Australia
When a relationship comes to an end, it can be a scary, emotional time, particularly when there are children and financial assets involved, or if domestic violence has occurred. It is important to first recognise that there are different stages of separation, which may include grief, anger, depression, and finally acceptance, and each person moves through these at their own pace.
It’s important to ensure that you and your partner obtain independent legal advice to understand your rights, obligations and the lasting impacts of decisions made in separation. At Peter Andrews Lawyers, we are here to provide you with all of the essential information you need to make decisions that are best for you and your family.
The advice on this page applies to all couples, both heterosexual and same-sex, and outlines where married and de facto relationships may differ legally. If you would like to discuss your situation and seek legal advice, you can contact us for an obligation-free consultation.
What Is Separation, Legally Speaking?
Under Australian Family Law, separation occurs when a couple stops living together as a couple. This occurs when at least one person in the relationship decides to end the relationship and communicates this with the other person. The other party does not necessarily need to agree for separation to occur. Separation can still occur if the two parties continue to live together after their relationship breakdown. This is called ‘separation under the one roof’.
The Separation Process In Australia
Under Australian law, whether a couple is married or de facto, the separation process is much the same. There is no set legal process to separate, in that you do not need to apply to court or a government organisation in order to get a separation. There is no certificate for separation, as there is for divorce.
There are some immediate decisions you need to make around finances and also children if there are any from the relationship. You do not need to make long term decisions immediately, however reaching temporary agreements will make the process easier for you and your family.
Some things you should consider or action immediately:
Decide where your children will live and who will take care of them
Discuss how you and your former partner will financially support yourselves and your children
Make arrangements for how bills, including rent or mortgage, as well as outstanding debts, will be paid
Decide who will stay in the family home
Advise government organisations that you have separated, including Medicare, Centrelink and the Child Support Agency
Advise your bank, insurance providers and superannuation fund that you have separated, and make arrangements for joint bank accounts
Share with your family and friends that you have separated
Notifying the above agencies and institutions of your separation will be important when it comes to applying for a divorce if you are married, for the division of assets, or if you do continue to live under the one roof, in order to prove your separation in the future.
If you are unsure what you need to do to solidify your separation, we are here to help. As experienced family lawyers, we can help you understand what you do and don’t need to do, to make the process as simple and stress-free as possible. Contact us for an obligation-free consultation.
Ending a Marriage
There are two stages to ending a marriage, the first is marriage separation, the second is divorce.
In Australia, marriage is defined under Australian law by the Marriage Act 1961, and the Marriage Amendment Act 2017, as the union of two people, to the exclusion of all others, voluntarily entered into for life. When separation occurs, it is important to follow the steps outlined in the section above to notify the government agencies and institutions relevant to you of your separation.
Any married couple can separate, however there are specific criteria that must be fulfilled before you can apply for a divorce, including but not limited to, your legal right to live in Australia, and you must have been separated for at least 12 months and one day. The divorce application process is fairly straightforward and in most circumstances you do not need to go to court. A divorce, however, does not finalise arrangements regarding the division of property or financial assets, or parenting agreements. You can read more information about these further down this page.
Ending a De Facto Relationship
First, what defines a de facto relationship?
A de facto relationship, both heterosexual or same sex, is outline in Australia by the Family Law Act 1975. It requires two people who are at least 18 years old, who have a spousal relationship, to be living together on a genuine domestic basis. The relationship is not defined as de facto if the couple are legally married, or are in any way related to one another.
In Australia, the court deals with de facto relationship separation claims in much the same way it would with a married separation claim, particularly when it comes to the division of assets and parental duties. This means to apply, you must complete the same forms a married couple would to begin the process.
That said, while a married couple has their marriage certificate to prove their relationship, it may be more complicated for a de facto couple, as they are often required to prove the genuine nature of their relationship before they can apply for a separation. For many de facto couples however, if there are no financial assets or children involved, a legal separation may not necessarily be required. If you are unsure whether or not you need to apply for a separation, contact us and we can help you to understand the circumstances of your situation in an obligation free consultation.
In the event that you do need to apply for a separation, it’s important to know that there is a time limit on making a claim of a de facto relationship under Australian law: you have two years from when the relationship ends to initiate court proceedings. If you wish to make a claim after this period, you are required to first seek permission from the court. If this is the case, contact us to seek advice from an experienced lawyer to help guide you through this process.
Family and Property Complications
While the process of separating and filing for a divorce are legally relatively straightforward, there are many circumstances which may cause complications, including domestic violence, parenting arrangements and the division of assets. In each of these cases it is important to understand your rights and obligations. At Peter Andrews Lawyers, we have many years of experience dealing in separation and divorce complications and can guide you through the process.
Leaving the Family Home
In most cases of separation, you and your partner will be able to decide who leaves the home and who stays, if anyone. If you are unable to amicably decide who leaves the home, or your partner refuses to discuss an outcome with you, you can apply to the court for a sole use and occupation order, which forces one person to leave. This order is only made in special circumstances.
If you have experienced domestic violence, you can also apply to the court for a domestic violence protection order, which forces the other person to leave your home.
It’s important to understand that if you and your partner jointly own the home, if you leave, either by choice, or are ordered to leave under a court order, this does not change any rights to possession of the house or your possessions. If a domestic violence protection order is taken out against you, and it says you must not be at your home, you must leave.
Regardless of the circumstances, if you leave your home, you are legally allowed to take any possessions you own individually. You should always take personal documents with you, such as:
Passports and other personal identification such as birth certificates and your drivers licence
Financial statements such as tax returns and bank statements
Credit and debit cards, bank and cheque books
Items you and your children may need, if they are leaving with you
Items with sentimental value
Supporting Your Children in Separation
Separation is often a distressing time for children, so it’s important to consider the best outcome for children when making decisions about custody and parenting arrangements.
Children will each react differently to a separation, and emotions can range from anger to sadness to feeling guilt for the separation. It’s key for parents to understand that the age of your children, as well as your own behaviour can have an impact on children, including the level of cooperation or conflict between you and your former partner.
Reassuring your children that they are loved, and encouraging them to maintain positive relationships with both parents as well as extended family will help them to adapt more easily to changes. You should also remember that if you can accept and deal with the separation, you will be better able to support your child through the process as well.
Negotiation of Living Arrangements for Children
There is no one size fits all when it comes to living and parenting arrangements after separation, because every family is different. The working hours and income of each parent, suitable living arrangements and ability to provide a safe environment for children are key to consider when making decisions about children in separation. You should consider:
How old your children are, as arrangements that suit a ten-year-old may not necessarily be suitable for a two-year-old
What is the most practical arrangement for your children, whether that is to spend equal time with each parent, or substantial and significant time with one parent (such as weekends and holidays)
Establishing a regular routine is important for providing stability and security, while encouraging the need to be flexible is also important should circumstances change
Providing ample notice if you want to change the routine, for both your former partner and your children
Any time they will spend with other family members such as grandparents
Who is responsible for making decisions on things such as what school they will attend, health care, sport, religious matters, and where they will spend school holidays
Considering all of these aspects of your children’s lives can be overwhelming, which is why we are here to help. Our experienced family lawyers can help you understand your requirements and rights, manage child support arrangements and parenting dispute resolution, and guide you to provide the best possible outcome for your children.
Division of Assets in a Separation
The division of assets will differ from couple to couple, and there are many factors that need to be considered in this process, and contrary to popular belief, each party is not automatically entitled to 50 per cent of the wealth. Factors that need to be considered could include but are not limited to, the existence or not of a “prenup” or binding financial agreement, the income of each party in the relationship, assets owned together and separately, liabilities such as home loans and credit card debt, and contributions made to the relationship by each party. It’s important to understand that contributions can be financial and non-financial, such as being the primary caregiver to children.
For information about the property settlement process when courts are involved, consult our article division of assets for a divorce.
There is a four step property financial settlement process we take you through to determine legally who is entitled to what, how to claim what you are entitled to, and the probable legal costs involved to settle your case quickly and correctly. It’s also important to know that time limits do apply to property settlements, so you should begin this process as quickly as possible.
In many cases couples are able to resolve their property and financial settlements with a financial agreement outside of court. If both parties cannot agree on the division of assets, or there is unfair bargaining power for one party, it is recommended that a consent order is filed in court.
Regardless of whether you believe you and your former partner can resolve the division of assets amicably, seeking independent legal advice from an experienced family lawyer ensures you get the best outcome possible for you. At Peter Andrews Lawyers, our experienced lawyers can guide you through the processes of the division of assets and property and financial settlement, and applying for a consent order in court.
Physical and Mental Health Considerations
Separation and the division of assets doesn’t only come down to the past and present, the future needs of each party are also taken into consideration. Whether you have experienced domestic violence, or are concerned for your physical, mental or financial future, we are here to help. Our experienced lawyers offer an obligation free consultation so that you can understand your rights, including what you are entitled to financially, to ensure your future security. Contact us to find out how we can help you today.
When to Obtain Additional Support and Legal Advice
It’s important to obtain independent legal advice if any of the following circumstances apply to you:
You have experienced domestic violence and are thinking about applying for a domestic violence protection order
You are considering applying for a sole use and occupation order to force your partner out of your family home
You want to protect your finances and property from your partner after separation, or you do not trust your partner with savings accounts or property
There are children involved and you want to understand how separation will impact parenting arrangements, child support or spousal maintenance
You want to understand how separation will impact joint bank accounts, joint debts, superannuation, property and your will (or lack thereof)