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Prior to Separation
Separated but living under the same roof
Registering your separation
You do not need to formally register a separation as this is granted by the Federal Circuit Court of Australia upon divorce. You do not need to get divorced after separation but failing to get divorced will affect your ability to remarry. It will also affect your legal rights and obligations in relation to financial matters, Wills and Estates.
important things you should know
Information about Separation
It is always a good idea to speak with a lawyer before separation so that you can understand what to expect during the process and make informed decisions about your children and assets.
Where property is concerned, our lawyers can give you an insight into your options for achieving a final property settlement with your former partner and how such a settlement might be finalised. We can also offer you more practical advice such as how to ensure that you have access to funds after separation, what to do with any joint bank accounts and how to divide personal belongings.
Where children are concerned, our lawyers can help you to consider the options for which parent your children will live with and how much time they will spend with the other parent. We can assist you to negotiate parenting arrangements with your former partner and advise you on the best possible way to finalise the agreement.
As well as providing legal advice about your rights and obligations, our lawyers can also refer you to separation counselling or mediation services for further emotional support during separation.
A separation is not formally registered until a divorce is granted by the Federal Circuit Court of Australia. You do not necessarily need to get divorced after separation unless you have re-partnered and wish to remarry.
It is important to keep in mind however, that staying married to your former partner can affect your legal rights and obligations in relation to financial matters, Wills and estates. Our lawyers at can advise you on whether you should seek a divorce from your former partner, assist you throughout the application process and represent you at your divorce hearing if required.
Typically when partners separate, one party will leave the former matrimonial home voluntarily. It is not uncommon, however, for both parties to temporarily remain living together while they make decisions about their financial relationship and parenting arrangements. This is known as being ‘separated but living under one roof’.
It is important to understand that both parties are legally entitled to remain in the former matrimonial home post-separation even though this may not be viable.
If your former partner is refusing to move out of the home, then unless there are safety concerns, you cannot simply force them out. It may become necessary in these circumstances to obtain a court order for exclusive occupancy that would exclude your former partner from the property. We can advise you on how to seek an order for exclusive occupancy or alternative options for excluding your former partner from the home where family violence has occurred.
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.
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 partner’s is not.
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 several 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.
plan of action
know your rights
We will take the anxiety and stress out of your situation by giving you a clear and complete understanding of the options that are available to you. There are two distinct matters you may need to consider upon separation: how your property will be divided between you and your former partner and the parenting arrangements to be made for your children. There are an array of factors which can complicate property and parenting matters such as issues regarding spousal maintenance, child support and even relocation of children.
Discuss your legal issue with us
Call us now to have a brief discussion about your matter and find out what assistance we can provide.
Come into our office to allow us to obtain more detail about your case and provide you with your legal options.
Once you have a clear and informed view, let us get started to achieving a resolution to your matter.