Aston Legal Group

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Family Law: Separation

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Can Help

The decision to separate is not an easy one. Our lawyers understand that the breakdown of a relationship can be emotionally overwhelming. Whether you are seeking advice before, during or after a separation, we are here and able to assist you throughout the entire process. We understand that separations aren’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. It is important that you understand where you stand and what your rights are.

helping you Resolve Family Law Issues


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.

Prior to Separation

If you are considering separating from your partner, we can advise you on what to expect throughout the process. We can advise you of your options to achieve a final property settlement and the procedure involved in reaching the outcome. We can also advise you on how to deal with joint bank accounts and dividing personal belongings. Where there are children are involved, it is important that separating couples talk to their children and ensure that the children’s relationships with both parents are preserved. Our lawyers can assist you to work out living arrangements for the children with the other parents. We will assist you by negotiating with your former partner and advise you on the best possible agreement.

Separated but living under the same roof

Once you have made the decision to separate from your partner, you may choose to remain living together while you make decisions about your financial relationship and parenting arrangements for you children. Separation can still occur even though you and your former partner are still living together. This is known as being ‘separated but living under one roof’. If you and your former partner apply for a divorce while you are separated but living under one roof, you will need to include a sworn statement confirming that you have been separated for at least 12 months. If your former partner is refusing to move out of the home, then unless there are safety concerns, you cannot force them out. Depending on your circumstances, you may however, be able to obtain an Order for ‘exclusive occupancy’ from the Court would require your former partner to vacate. Aston Legal Group can advise you on how to seek such an Order.

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. 

important things you should know

Questions And Answers

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.

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.

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.

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.

“Liberty is the right to do what the law permits.”



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Issues that may arise in family law

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