Legal Separation in Australia

How long do you need to be separated before divorce in Australia?

You need to be separated for a year before you can apply for divorce. For example, if you separated on 1 January 2021, then you can apply for divorce on 2 January 2022.

Do I need a lawyer to separate in Australia?

Separation is the process of ending your relationship. You do not need an official document to say that you have separated, or a lawyer to confirm your separation.

If you tell the other party that you wish to end your relationship, and act on that, then you have usually separated. Moving out is a good indicator of separation. If you tell the other party you wish to end your relationship and move out, then you have likely separated. Every case is different.

You do not need to inform the Court if you separate, but you might wish to inform Services Australia of your separation for Centrelink or family tax benefit purposes or consider making an application for child support.

If you are unsure as to whether or you are separated, or you are separated but still living in the same house, you should contact us for legal advice.

What if I want something in writing to prove our separation?

You can draft and sign a “Separation Declaration” and serve it on the other party as evidence of your separation if you feel that it is necessary.

We can draft this for you but recommend you contact us for legal advice so we can decide whether a Separation Declaration is necessary or appropriate.

Can I be separated but still living in the same house?

You may have told the other person that you considered your relationship over, and moved into another bedroom, but continued to live in the same house.

In that case, you might be “separated under one roof” from the date that you told the other person that the relationship was over and acted on that statement (e.g. stopped acting like a couple, stopped being intimate, started sleeping in the second bedroom or on the couch).

However, things can get murky if you tell your partner that you wish to separate but continue to act like you are in a relationship – e.g., you maintain a sexual relationship, you do your chores together, and/or you continue to go out and socialise as a family or couple. If you continue to act like a couple, then the other party could argue that you are not yet separated.

What is the difference between legal separation and divorce?

The main difference is that divorce is the formal process of legally ending marriage while separation is the “break up”.

If you are not married, and were in a de facto relationship, then you do not need to get divorced. However, if you registered for a civil partnership you may need to contact your local State or Territory authority to complete the necessary forms to terminate your civil partnership. We can assist you with this.

What am I entitled to in a separation?

If you and your partner have property (whether separately or together), then you and your partner might need to have a property settlement.

However, how your property is divided will depend on your circumstances.

There is no rule or presumption that assets are divided 50/50 in Australia.

The relevant factors are:

• Your contributions – both financial and non-financial, and including the financial arrangements during your relationship, what you both brought in from “outside” the relationship (e.g. what you had when you started the relationship, any gifts or inheritances, and personal injury compensations); and
• Your current circumstances and future needs – your ages, health, care of children, and income earning capacities.
• This is not an exhaustive list.

We recommend our property settlement advice if you want to know what you or your partner might be entitled to in the event of separation. It will advise about how all of the above apply to you.

Our advice tool can be used for married or de facto couples.

Who gets to stay in the house during separation?

There are no rules about who gets to stay in the house when you separate and there is no automatic entitlement for either party to have sole occupation of the property.

Getting advice about the use of property and the significance of a physical separation is usually very important.

In emergency situations, such as where you have experienced domestic violence, then you could contact the police (call 000) and ask for assistance with either leaving the house or asking the other party to leave the house.

We recommend you contact us for legal advice before you move out of the house.

What are the grounds for legal separation?

In Australia, you don’t need a reason or grounds to separate.

You do not need a “reason” for divorce either. You just need to prove that you have been separated for at least 1 year and if you have children, that there are proper arrangements in place for your children.

What should I do or not do during separation?

It is important to remember the following things when going through a separation:

• If things are getting hard with the other party, and you are in the early stages of separation but you do not know where you stand, please seek legal advice as we can help you with a strategy for negotiations and resolving the matter amicably.
• Do not rely on unqualified legal opinions or the experiences of friends and family. For example, we often have people say to us “but my friend got 75%, why can’t I?” Every case is different and there no rules or formulas about what each party’s entitlements are.
• Be careful about what you post on social media, text or email the other party. Those messages can be used against you (and often are) in Court.
• Do not agree to temporary arrangements which you do not think are in the best interests of the children. In the shorter term it is very difficult to change the “status quo”.

Can I use this service if I am based in Sydney?

Yes, family law is consistent across Australia and this advice is applicable to anyone in Australia, including Sydney.

Can I user this service if I am based in Melbourne?

Yes, family law is consistent across Australia and this advice is applicable to anyone in Australia, including Melbourne.

How long after separation does property settlement / financial settlement occur?

A married couple who has divorced has 1 year after they divorce to apply for a property settlement. A de facto couple has 2 years after separation to apply for a property settlement.