Have you separated from your spouse or partner? Are you contemplating separating from your spouse or partner? We understand that it isn’t easy, but before you can get on with the next chapter of your life, you need to take control of your situation and make arrangements for your future. You need to know where you stand. You have rights.
will take the anxiety and stress out of your situation by giving you a clear and complete picture of the options that are available to you.
There are two distinct matters you should consider: the arrangements for your property settlement and how your property will be divided, and what are the arrangements for your children.
Here are some things that you should consider:
There is no easy legal definition of separation. Separation looks different for every couple, and can even look different to each person in the relationship. It is not uncommon for a couple in family law proceedings to disagree about when they separated.
Separation occurs when at least one person in the relationship believes the relationship is over, and the other person is aware of that, even if they do not agree. Some couples may separate and reconcile many times before finally separating.
You can be separated and still living in the same home (known as separated under one roof), depending on your circumstances. A lawyer can help establish if you are separated, and when it occurred.
There is no need to register a separation. There is also no way of formally registering that a couple has separated. However, it is always a good idea to have some kind of ‘proof’ of the separation – whether that be a text message, telling friends or family, an agreement signed by both of you, or correspondence from a lawyer. This can sometimes make things easier if there is a dispute about the date of separation later on.
It depends on your situation. If you are in immediate danger or need to leave a relationship or home urgently, then you should always put your safety first. Sometimes, speaking with a lawyer can help you come up with a safe and effective separation strategy.
Generally, it is a good idea to speak with a lawyer before separation. A lawyer may be able to give you good advice on how to manage the separation, and any steps you should take in your unique situation. Often, once separation starts, the situation can become quite emotional and difficult, and your ex-partner may refuse you access to the home, children, or documents you need in the future.
Unless you have been served with a court order telling you to leave the home, you generally will not need to leave the home, even after separation. Some couples remain separated under one roof for months or years before someone leaves the home. What is best for you will depend on your circumstances, and you should seek legal advice before leaving home.
If you have been served with an order that tells you to leave the home – whether it is an Intervention Order, Family Law Act Order or other order – then you should abide by that order and seek urgent legal advice. This is true even if your name is on the title or lease, and your partners are not.
You cannot force your spouse to leave the home yourself and will need the assistance of the police or courts.
If you are subject to family violence, you should seek urgent legal advice in relation to applying for an Intervention Order. The court can make an urgent interim order that prohibits your partner from coming near you, or the home, even if they are named on the title or lease.
It is also possible, although usually more difficult, to have an order made by the Family Court that forces your partner to leave the home.
You do not have to get a lawyer after you have separated, however, we strongly advise you seek legal advice as soon as you become aware that the relationship has ended.
Your partner may have been seeking legal advice for several months prior to the separation and may be ready to lodge an application in the court very shortly. The longer your lawyer has to prepare, the better your case will be.
There are many things that you may need advice on after separation, including divorce, intervention orders, access to children, property separation, and wills. For example, many people do not know that even after separation, your ex-partner may make a claim on your estate if you pass away. They may also begin Family Court proceedings in 20 years’ time to seek a share of your property in the future. It is always better to seek advice now so that we can advise you of any risks, and help protect you against them if necessary.