Marriage separation in Australia

Things you’ll need to consider after you have separated

If you and your partner decide to separate, you’ll need to make some immediate decisions about your living arrangements, your assets, your financial arrangements and obligations.

If you have children, you will also need to consider what their care and living arrangements will be and how you and your spouse will support them. Before you separate, you’ll need to consider:

• Where your children will live;
• Who will take care of the children;
• How each of you will support the children;
• Who will pay any outstanding bills and debts;
• Who will stay in the current house;
• How the rent or mortgage will be paid;
• What will happen to any joint assets, such as bank accounts, cars, furniture, real properties and/or any other shared; and
• What will happen to your respective superannuation interests, particularly where there is a joint Self-Managed Superannuation Fund.

Even if you and your former partner cannot agree on these issues at the point of separation, it’s advisable that you at least come to a temporary agreement while you both receive legal advice. This will decrease much of the strain on your family and will allow you to retain some level of normality.

Separation and divorce after marriage in Australia

While there are strict time limits in place to make an application to the family court for a family law financial settlement or maintenance after a divorce has been obtained, it is not a requirement to be divorced to formalise any agreement in relation to family law financial matters or to make an application to the Court for same.

In fact, a property settlement can be agreed upon or an application to the Court can be made at any time prior to the parties obtaining a divorce.

While most couples choose to formalise their separation by way of a divorce, other parties decide to separate without ever obtaining a divorce.

In either circumstance, it is advisable to obtain legal advice about ending the financial relationship and formalising same by way of a Consent Order, Order of the Court of a Financial Agreement.

Separation after a de facto relationship

A de facto relationship, under the Family Law Act 1975, is defined as a relationship between two people (who are not legally married or related by family) who, having regard to all of the circumstances of their relationship, lived together on a genuine domestic basis.

Covered under Section 4AA of the Family Law Act 1975 a de facto relationship aims to safeguard the increasing number of couples who cohabit but do not enter into a marriage.

Learn more about what is qualified as a de facto relationship in Australia.

Parties in a de facto relationship should be mindful that there is a different time limit within which they must commence court proceedings for a property settlement than for those who were married.

While those in a marriage have 12 months from the date their divorce order comes into effect to commence court proceedings for a property settlement, those in de facto relationships must apply within 2 years of the date of their separation.

This means that as long as a married couple does not divorce, there is no time limit imposed on them to finalise a property settlement.

Once a de facto relationship is found to exist and the other requirements referred to above have been met, the Family Law Act treats those parties no differently to parties who are married when it comes to dealing with property and financial issues.

The importance of the date of separation

If you and your spouse or de facto partner do decide to separate, you should (if possible) both come to an agreement with respect to the date the separation took place and/or make a note of this date in writing.

This is because:

• if you were married and you do decide to formally divorce at a later date, you’ll need to either agree on or prove that you have been separated for at least 12 months; or
• if you were in a de facto relationship, the time limit to initiate court proceedings for a family law financial settlement commences from the date of separation.