What am I entitled to in a separation in Australia?
Have you recently separated from a marriage or de facto relationship? Are you wondering what your rights or entitlements may be in relation to property settlement?
Going through a separation is difficult for everyone involved. At Australian Family Lawyers, we provide you with straightforward advice and representation when you need it most.
Dedicated and caring family lawyers for your separation
When a de facto relationship or marriage breaks down and you make the tough emotional choice to separate, you will need to make some practical decisions on parenting arrangements and property settlements.
Getting information and advice from a reputable family lawyer – like the dedicated and caring family lawyers on our team – is hugely important. Read on if you’re thinking of, or have already separated, or get in touch with our team for a free initial consultation.
What is legal separation?
In Australia, legally separating, whether you’re in a de facto relationship or married, is a straightforward process. Fault is no longer relevant, and it only requires one person in the relationship to make the decision to separate, inform the other person, and act on that decision.
It does not require that you formally notify anyone or take any specific steps. You can even continue to live together as long as you make it clear through some action that your relationship has ended.
Separation vs divorce
If you’re in a de facto relationship, you don’t need to worry about going through the formal process of divorce. Ending the relationship via legal separation is sufficient.
When you are legally married, however, you will need to commence divorce proceedings in order to end your marriage. To do this you will need to show that you have been separated for a period of 12 months with no chance of reconciliation.
What to think about when separating?
Some things you may need to consider when separating are:
- Parenting and custody arrangements
- Child support
- Property settlement
- Spousal maintenance
- Information about mediation and court proceedings
Having expert family lawyers like Australian Family Lawyers on your side can help you get the right information. Our team will also ensure you get the best outcomes for your situation with compassionate and caring support.
The legal separation process
While there aren’t any legal requirements to separate from your partner, there are some steps that you should take to make the process smooth.
Even if you think your separation process will be simple, it is extremely helpful to speak to an experienced separation lawyer from the start. We can help you understand what you’re entitled to in separation and protect your rights and interests from the outset.
We can also help you to understand how the law applies to your situation and assist you commence any relevant process such as arranging a family dispute resolution conference, if necessary.
- Inform your partner.
Your partner or spouse doesn’t need to agree to the separation. But they do need to know that you think the relationship is over.
- Take action to separate.
You do need to take some action to indicate that the relationship is over. This can be as simple as no longer acting as a couple and telling friends and family. Having one party move out is an excellent indication that the relationship has ended, but it’s not a requirement.
- Establish parenting arrangements.
Parenting agreements, plans and orders help co-parents navigate the challenges of raising children separately. Detailed childcare arrangements also and provide clarity on each parent’s responsibilities and expectations.
Custody or parenting arrangements are not required in order to separate. However, even if you have an amicable relationship with your ex-partner now, there’ is no guarantee that this will be the case in the future. It’s always best to have it in a legal agreement to make it clear and enforceable.
Some things that your parenting arrangements may cover include:
- Where the children will live, and how time is divided between each parent.
- What happens if your child gets sick.
- How parents will communicate.
- Schooling and other arrangements.
- Special occasions
If you can’t reach an agreement about parenting arrangements, you may need to ask the court to help you finalise these agreements
- Divide property and assets.
When going through any separation you’ll need to divide any shared assets and relationship property.
If you and your ex-partner are able to agree on how to divide your assets, you may be able to finalise your property settlement without having to go through mediation or attend court. If not, then the next step is to attend some form of alternative dispute resolution, such as mediation. You will then negotiate with your ex to come to an agreement.
If you still can’t reach an agreement about how to divide your assets, you may be required to attend court to have a decision made on your behalf, although the majority of cases settle without a trial.
De facto separation: What you need to know
Under Australian family law, de facto couples have the same entitlements as a married couple in Australia. They also have the same obligations. So, if you’re in a de facto relationship, separation can be just as complex as ending a marriage.
Of course, you don’t need to go through a formal divorce process. However, you will still need to go through the property settlement process, and you may need to resolve other legal matters like custody issues and even ongoing de facto spousal maintenance.
Determining if you are in a de facto relationship?
The first step is to determine if you’re in a de facto relationship.
Under the Family Law Act you are considered to be in a de facto relationship when you have a genuine domestic relationship with another person (regardless of sex) and you have:
- Lived together for at least two years; or
- Have a child together; or
- Have registered your relationship under the law of any Australian State or Territory; or
- Significant financial considerations exist.
You will not be considered in a de facto relationship if you or your ex-partner were legally married to another person or if your relationship broke down prior to March 2009.
However, even if you don’t quite meet one of these categories, get in touch with our team. We may still be able to help you get the best outcomes from your separation.
Do I need to register my de facto relationship?
There is no requirement to register your de facto relationship. However, if you decide to, you’ll have to follow the requirements of the state you’re registering in. Start by contacting the state’s Births, Deaths and Marriages office to work through the process. Our team can also help you with state-based advice.
Can I claim spousal maintenance if I was in a de facto relationship?
Yes. If you were financially dependent on your partner, you may be eligible for spousal maintenance. The Court will look at all the same factors as they would if you have been legally married. These include:
- Your ability to support yourself financially.
- Your ex’s ability to provide financial support to you.
- Your age, health and income-earning capacity.
If you do want to make a claim for spousal maintenance you must do so within two years of separation. Get in touch with our team for help.
Commonly asked questions about separation
A separation is the process of choosing to no longer live in a domestic partnership with your de facto partner or spouse. You do not need to attend court to formalise a separation; you can make this decision and be separated without needing to involve the court.
However, if you wish to get a parenting order for the care of your children, or if you wish to get a divorce, you will need to attend court to formalise this.
Australian family law dictates that people separating who want to split their assets or work out parenting arrangements must attend a conference to try and resolve any differences on their own before involving the courts.
You are required to attend this mediation session unless there is family violence, or clear evidence that one party is unwilling to cooperate.
When people share assets during a partnership they will usually split these assets upon separating. If the parties cannot agree on how to split the assets, the court can work out a property settlement which is based on a range of factors.
There is no formula for how a property settlement is decided; every case is decided on its own merits. Every partnership will have an identified property pool, and then any relevant contributions (including non-financial contributions) will be identified, before a judge will make a decision on how assets are to be divided based on justice and equity.
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About Australian Family Lawyers
Our team of dedicated family lawyers are committed to the swift and dignified resolution of your separation. We know how tough this time is on you and we are here to offer support, guidance, and industry-leading representation during your separation.
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