Separation arrives uniquely for every couple. It could come slowly. It might appear out of nowhere. But whatever precedes it, the lived experience of separation is likely to be practically difficult and painful.
This Guide is not about the emotional challenge although we know that, for many people, this is the main issue for them at the time. Rather, we want to give you an overview of the legal issues surrounding separation, and a heads-up on the practical tasks to be kept in view for a successful transition to the new life.
But because the emotional toll of separation is so significant, we wanted to urge you, upfront, to look to your mental and to your physical health as a matter of priority. Yes, you have to look after all the things, but you should especially look after yourself. All the practical and legal information in the world will not make your separation a success if you cannot stay well, stable and able to make it one. So, please seek out counselling or medical support if you have developing physical, emotional or behavioural issues. This is not the time for falling apart. It is the time for one foot in front of the other. Separation can feel like the end of the world, but in fact, it’s the end of a bad time and a great big stepping-stone to a better future.
There’s lots to think about and to get organised. It might be difficult to stay clear in your thinking and to make every decision a good one during this stressful time. It is important, however, to research, to consult and to plan and then to take action that minimises future negative fall-out and optimises for the best possible outcomes.
Is there law about separation?
The law we refer to in this Guide comes from the Family Law Act, 1975. This is a Commonwealth law and it applies in every state and territory except Western Australia, which has its own Family Law Act, 1997. The Commonwealth’s Family Law Act specifically addresses marriage and divorce but then also parenting, property and financial arrangements for both separating married and de facto partners. The family court website is the best source of detail about Commonwealth family law.
As well as the Commonwealth law, there are other relevant laws, such as domestic violence and child protections laws, that are different in every state and territory. And in addition to the written law, there is law that accumulates from the decisions in all of the cases that go to court. This is called ‘the common law’. There are some cases about separation but unless you end up in a dispute (about the date of separation or whether you are indeed separated) it is unlikely that you’ll need to know about those.
What is a de facto relationship in family law?
People can name any relationship ‘de facto’ if it suits them. Centrelink and other organisations have their own definitions of what a de facto relationship is. But if a person wants to access property settlement or spouse maintenance processes under Australian family law, they will need to have an ‘eligible de facto relationship’ under the Family Law Act. This would be the case if:
The partners live in a genuine domestic relationship
They have done so for at least 2 years
They have a child
There would be hardship if a de facto relationship wasn’t found to exist
The relationship has been registered under a state or territory law.
Because Western Australia has a different family law, there are complex requirements about how the relationship relates to being in or out of that state. For example, former de factos living in Western Australia can apply under the Commonwealth law if at least one-third of their relationship was spent in a state of territory that is not WA.
What is a ‘genuine domestic relationship’?
There is no hard and fast definition of genuine domestic relationship for identifying de factos under Commonwealth family law but in the event of a dispute about the issue, the court would look at:
- whether there are any children of the relationship
- whether a sexual relationship existed between the parties
- whether and how the partners lived together
- the degree of financial dependence between the parties
- the degree of mutual commitment toward a shared life
- the social reputation of the relationship
- use of property.
You can get divorced after you have been separated for a minimum of 12 months. This is just one reason why being certain about your separation date is so important.
For more detailed discussion about divorce, see Tribe’s Guide to How to get a Divorce.
Talk to Tribe also about advice and assistance with preparing, filing and serving your divorce application.
What is legal separation?
To other people, the separation of one long-term couple looks very similar to the next. They stop going out as a couple. They let the people around them know that they are no longer together. We all have an instinctive understanding about what this means so the social treatment of the couple generally changes from this point. But is this what separation really is? Do these outward appearances have any bearing on what the law considers to be separation? The answer is yes, more than a bit, but there’s a lot more to it as well.
In this chapter, we’ll talk about what a valid separation at law is, including in the more difficult context of ‘separation under one roof’ and we’ll also touch upon the legal differences in separation as between de facto and married couples.
How do I separate?
To separate from a long-term relationship, one person or the couple together, must decide that the relationship is permanently over. This sounds like an obvious statement. But there are particular qualities of this decision, and more particularly, of the action associated with the decision, that really matter legally. The most important of these are:
Clear communication of the intention to separate
Substantial change in the character of the relationship.
Under Australian law, legal separation is proven by one or both of these. There is no requirement to physically separate. There is no requirement to put it in writing or to register the separation (with Centrelink, the court or anywhere else) to make it ‘official’.
The intention to separate should be clearly communicated between the parties.
Communication of the intention to separation can be achieved by simple words said by one person to the other (e.g. ‘Our marriage is finished’). It can be apparent by action that is consistent only with an interpretation that the relationship has been cut (e.g. by one person moving all of their gear out of the house). It might be agreed between the parties. It might occur in an email or a letter addressed by one party to another.
If separation is not effectively communicated between the parties, in the eyes of the law the relationship remains intact. This could have legal implications that are not in your best interests further down the track.
At law, it doesn’t matter how it happens. What matters is effective communication of at least one person’s intention that the relationship is at an end, ideally from a specific date you both agree on. It is a good idea to use clear words in an appropriate context to express the intention to separate, even if you find this hard to do. (And yes, lots of people find this hard to do.)
The words that you choose shouldn’t allow any misunderstanding about whether you are serious about ending the relationship, or about whether your feelings are temporary or unsure, or that you might mean something altogether different. You can involve other people in the communication process but if you are not present you may never know whether the correct message – that the relationship is finished—was given or received. (And the other person might just say that it wasn’t anyway!)
What separation isn’t
Words and actions that do not indicate final separation, at least by themselves, include:
- Walking out.
- “I’m going on a trip and don’t know when I’ll be back.”
- Being unfaithful.
- “I think we should try living apart/need to take a break.”
- An act of domestic violence.
- “This is not working for me.”
- Changing relationship status on Facebook.
- “I don’t love you anymore.”
- Mere physical separation.
- “Our relationship is in trouble.”
- “I hate you.”
Check out details about Tribe’s Separation Advisory Clinic for help and direction about managing your separation.
Change inside the relationship after separation
As we mentioned in the introduction to this Chapter, separation, as it is recognised by society, is a set of cultural behaviours. But it is true also that there is a particular set of behaviours that people with intact relationships generally perform. These include the way they present themselves socially, the way they generally live together. For example, most couples will share a bed, most will have a sexual relationship, they’ll have routines about shared work around the house, shared financial resources and obligations, and provide other forms of support and care to each other.
In the event that there is misunderstanding or dispute about whether or when legal separation has taken place, a court will be interested to compare the ‘before’ and ‘after’ pictures of both the internal and external habits in the relationship. A person attempting to prove a separation will be trying to show that these habits, and indeed, that the entire character of their togetherness, shifted from a certain date.
—————————————————————————————————————-A case study:
IVF + texting trumps separate homes + arguments
One of the de facto partners left the home and made a separate residence. Despite this, and their frequent fighting, the couple continued with their arrangements for one of them to have a child by IVF, communicating often by text about this. The court decided that the couple was not separated. Clarence v Crisp  FamCAFC 157
The court understands that people live their relationships, and arrange their separations, in very different ways. What matters is not that you do or don’t do anything specific – say, that one person used to cook dinner for the other and then stops — although that fact might certainly be part of the overall picture. Rather, what is relevant is how the overall pattern of living, the character of the relationship in its entirety, has changed. In circumstances of separations under one roof, where lots of the same routines may be continued, being able to demonstrate this shift can be a delicate matter.
In practical terms, the court might be interested to know about changes in the residence, in frequency and forms of communication, in household routines, social presentation, financial arrangements and yes, about the couple’s sexual relationship. What matters is the overall pattern of togetherness and whether there has been a significant change.
How is separation different for married and de facto couples?
Although property rights and entitlements at the end of a relationship for former de factos have now been brought into line with the rights for people in a marriage, the fundamental legal character of the two types of relationship are very different. Put simply, a marriage exists independently as a legal union at law and a de facto relationship doesn’t. De facto relationships have no identity outside the laws that address them for specific purposes. In each of those laws, a de facto relationship is particularly defined.
In a separation dispute in court, a married person will have the pressure of proving the separation by showing that an on-foot marriage relationship doesn’t exist. In a family law dispute about separation between de factos, the pressure of proof is on the other side. That is, the person saying there was no separation must prove that a de facto relationship, as defined under the law, did exist at the relevant time.
The difference is not going to have much practical significance for most people. It might have most relevance where one party is trying to access the property settlement entitlements for de facto couples under the Family Law Act.
Why does the date of separation matter so much?
- You must be separated for at least 12 months before you can apply for a divorce.
- Child support becomes payable from the date of separation.
- Independent Centrelink benefits generally become payable from the date of separation.
- The date of separation is an important marker for assessing entitlements in a property settlement (about the distribution of property between the parties after relationship breakdown).
- Spouse maintenance (where money paid by one spouse, including a de facto spouse, to support the other) is usually payable from the date of separation.
- A court may compare arrangements for children before and after the date of separation in deciding on parenting orders.
- If former de facto partners want a court-ordered property settlement or for spouse maintenance payments, they must apply within two years of the date of separation. (There are exceptions for special circumstances.) This includes ‘consent orders’ for property settlement: see Chapter 3. about this.
- In the usual case, de facto partners’ access to the family law system’s processes for property settlement and income maintenance requires that separation does not occur before two years after the couple started being a de facto couple.
———————————————————————————————————————A case study:
Showing separation by changed circumstances.
A wife discovered that her husband had been unfaithful. After this, they slept and ate in separate rooms. They didn’t speak directly to each other, and had separate social lives. But she also continued to wash and cook and clean for him. He said they weren’t separated. The trial judge agreed. The full court, on appeal, did not. In the Marriage of Pavey (1976)
Under the Family Law Act, if you get back together after separation, and this lasts for less than three months, then you can re-start the clock towards the 12-months waiting period before divorce when you separate for the second time. You can only do this once though. If you do reconcile a second time, or if your reconciliation lasts more than 3 months, the calculation of the 12 months will start afresh from the end of the second reconciliation.
Living together and legal separation
Separation does not have to be physical, although for most people, it is. The term ‘separation under one roof’ has developed, indicating that a couple has legally separated but remains living in the same residence, sometimes even sleeping in the same room. Separation under one roof is an increasingly common arrangement as the cost of accommodation in contemporary Australia continues to grow.
If a relationship has been severed by effective communication, express agreement or other clear action, there is no additional requirement that one party must live somewhere else to establish legal separation.
But it can be emotionally, and practically, very wearing to continue to live in close contact with a former partner without the old structures of mutual support, or if there is conflict, particularly. There is not a lot to recommend it if you have any other option.
Centrelink and separation under one roof
If one or both of you receive benefits, Centrelink will assess whether you are part of a couple or separated under one roof on the basis of five factors, including:
- financial arrangements
- nature of the household
- social aspects of the relationship
- presence or absence of sexual relationship
- nature of the commitment
Check with Centrelink for the Relationship Details-Separated under one roof form on which information about these factors can be submitted.
Notwithstanding the unpleasantness, the likely only family law complication arising from separation under one roof is that you will have extra steps to take when you apply for divorce, to prove that you were actually separated for the required 12-month period.
Evidence of the separation date
If you and your spouse have not been physically separated — that is, living in separate accommodation–for 12-months before applying for a divorce, the court will ask you to provide acceptable evidence that you were legally separated under one roof when you make the divorce application.
This may be easier to do if you have considered this requirement ahead of time—preferably, at or around the time of what you want to be considered ‘The Date’ of your legal separation.
Categorical, written, evidence of the date, created at the time of the separation, is the best evidence you can supply. This might be a written note identifying the date of separation. Preferably, this might be signed by both partners but a note signed and dated by you is OK. It might be a copy of the letter you wrote to inform the bank of the date. It might be the email that you wrote to your partner, telling him that you regard the relationship, now, as over. Or a journal entry, or an email to your sister…
You will need also to be able to paint the before and after picture of the overall character of the relationship. This might be tricky.
The key takeaway: Don’t just assume that you and you partner agree about the date of separation. It is an important date in property settlement processes, and it might be in your partner’s financial interests, later on, to dispute it. It is best to have to clear, written evidence of the date of separation that originates at that time.
Drafting a separation-under-one-roof affidavit
When you apply for a divorce, the court will want to see evidence of separation under one roof in affidavit form. An affidavit is a sworn statement of fact. You will need to prepare two of them–one made by you, and one made either by your spouse (in a joint application for divorce) or by someone outside the marriage with knowledge about the end of the relationship: a friend or relative is fine. These should be drafted, then signed and sworn before an authorised person, and then filed in court alongside your application for divorce.
There are formal, legal requirements for drafting any affidavit, and for the contents of a separation-under-one-roof affidavit in particular. But the process is one that lay person can certainly manage, and especially with appropriate legal advice and support.
Tribe can help you to prepare your separation-under-one-roof affidavits. For more details see Divorce Application: Separation-under one-roof Affidavit.
Practical realities at separation
It is the most important thing. That you can put this decision you’ve made to end the relationship into effect without being endangered. Or that perhaps you can hear and accept that your relationship is at an end without feeling drawn towards violent behaviours.
Even if domestic violence has not been a feature of your relationship, it can arise at separation. It may or may not feel like the term family violence applies to you. It can look a lot of different ways, including in forms of financial abuse that many couples have normalised. Now is the time to consider the possibilities.
Even in the absence of domestic violence and financial abuse, your privacy is at considerable risk at the time of separation.
Your partner may seek to gather information about your activities and plans. This is very common indeed. Some lawyers will positively advise their clients to do this: to access what information they can, while they can, on their partners’ devices. Consider whether it is possible that your partner may already be spying on your email and social media and the contents of your devices.
When you see separation on the horizon, take immediate action to change all of your passwords, including to your email account, to all social media accounts, to bank and credit card accounts, iTunes, Paypal, other accounts and software and to computer’s operating system. Close all software and shut down your computer when you are not using it.
Weighing up staying and going
It can be difficult for a separating couple to decide who should leave the family home and when. There are number of issues, and although agreement between you and your partner is the ideal situation, you might personally consider the following factors:
Safety – Leave if you feel unsafe, or if the emotional temperature between you is very high, with no sign of relief by the other person’s action.
Children: reasons to leave – Perhaps you should leave if that means the children can stay living in the family home with the other parent (and this would best for them) or if this would reduce the level of conflict that the children are currently witnessing.
Children: reasons to stay – If you leave the children in the primary care of the other parent, it can be difficult to change this.
Cost – Can you afford two households?
Property settlement – Be aware that if you leave the house, and continue to pay the mortgage, you are unlikely to get the full value of the mortgage payments in the property settlement.
What is fair?
What doesn’t count is who has built or bought the house, and or whose name is, or is not, on the title. These facts do not count for much in the eyes of the law. If it is safe to do so, tell your partner this. If they disagree, invite them to check with a lawyer.
If you do decide to leave…
Take everything you ever plan to take when you finally leave the house. It may be more difficult to get back in later than you expect. At the point you leave, the house becomes the residence of the other person. They may take action to prevent you returning.
Can I come back?
Once you move out, it will be very difficult, perhaps impossible, to change your mind and come back, unless your partner agrees to this.
Changing the locks
The legal position for changing the locks varies depending on whether you are renting or owning, and the overall circumstances. Generally speaking, the person left in the house has the right to decide who can enter and leave, and they are entitled to their privacy.
Changing the locks shouldn’t happen unless separation is accepted by both parties, when the leaving partner has another place to live, and has had ample opportunity to remove all of their possessions.
Sharing relocation cost
If your partner is the principal earner, and you want to leave the house, and they are refusing to help with financial assistance to enable the separation, you can apply for a court order – an urgent maintenance order – to get your partner’s financial help with the costs of set-up (e.g. bond).
Talk to Tribe about how to apply for an urgent maintenance order
Dividing household goods
Dividing the household stuff can be a very painful process. It is best to do the physical division and the removal at the same time. Aim to finish as quickly as possible and with minimum conflict.
Make a list and, if you can, sit down with your partner to discuss it. If not, indicate on the list what you propose to keep and leave the list with your partner, inviting further discussion.
Being as fair and reasonable as possible will work better for you in the long-term. If appropriate, discuss with your children what should happen with their things.
Planning an amicable separation
Lots of writing about family law tends to focus on the negatives. On what can go wrong. On the worst behaviour people can exhibit. On conflict and dispute. This is because this is what (at least the current form of) our family law is designed to address.
But legions of married and de facto Australian couples separate amicably – that is, with dignity, mutual care and respect. There are lots of ways to achieve this, but planning, communication and positive, timely action is vital. Amicable separations and divorces don’t just fall into place–either on children’s issues or for property and finances. In the case of the former, you will need clear, workable plans for sustainable post-separation parenting. You will also need a formal property settlement, unless your asset pool is very small, and then, perhaps, even so. (We outline the reasons for this in Chapter 3.)
If you are truly amicable, then you can talk. Do this. Together, make the plans and take the action. Make the separation formal and certain. By doing this, you have the best possible insurance for continuing good relations and a head-start for the new life.
It is important to consider the role of a family lawyer in the early days around separation. As the 2019 American film Marriage Story quite horrifically and yet realistically demonstrated, a separation that is on-track for cooperative, amicable outcomes can be completely derailed by the involvement of a lawyer. On the other hand, there are issues about parenting, property and finances that are vital for the support of each individual life going forward. Fair and proper outcomes are important.
Whether or not you intend to work with a lawyer on an ongoing basis, it is important to understand your position, in your unique circumstances, in relation to Australian family law. Take the time to get some early, initial family law advice.
Looking after yourself
For most people, and even if they believe they are coping quite well, separation carries significant psychological toll, almost a shock factor. It may feel a bit like a bereavement: one moment you’re going OK, and then the next you’re feeling like you can hardly move. You may not be able to sleep. Or you might want to sleep all day. You might feel afraid, embarrassed, guilt, anger or loss of confidence. Or nothing. Or all of this.
The impact of separation in your mind and heart is likely to bleed through into your behaviour. You may have the urge to drink, eat or smoke a lot more, even if you haven’t overindulged for years. You might be caught up in arguing, verbal abuse or other patterns of aggressive, controlling behaviour.
Although this may be difficult to absorb and believe, try to at least notice how you’re behaving, and how you are feeling. Even if you don’t feel you can do anything to change these things in the moment, just noticing and naming the feelings might give you some distance from them. Be kind to yourself rather than critical. Remind yourself that ‘this too will pass’. And it will pass quicker if you look after yourself. Drink water, sleep as much as possible, take ‘mental health days’, meditate or sit quietly and just let it wash over and past you, eat well and do as much exercise as you can every day. Even just walking is good.
Now may be a good time to access the psychological programs that many workplaces now offer. You can also seek affordable counselling from community services like Uniting, Catholicare and Relationships Australia. You might need someone ‘on your side’ to talk you through.
Lastly, it is really important to keep as close a check as you can on what you say and how you behave towards your former partner. Be civil or disengage, if possible, until you feel more in control. If you don’t, your words and actions could float back to you in a court affidavit.
Check out Tribe’s Separation Advisory Clinic for help and direction about managing your separation.
Finances and property
There is a great deal to learn and understand about property and financial matters after separation. Don’t try to absorb it all at once. In this Chapter we provide a broad overview of the field, but there is much more to know. For now, we just want you to focus on the matters you need to consider upfront and to attend to in the earliest times, perhaps even before separation.
People often focus too much and too early on how their final property settlement will play out: to put it bluntly, who will get what. Although it is important not to leave property settlement for too long after separation, don’t spend too much energy on it at separation. You can do more harm than good in premature negotiations. In particular, don’t make early promises. Breaking them later can be very damaging for relations. You need clear and total information, and legal advice, before making an offer.
Why do we need a property settlement?
Without a property settlement, your financial relationship with your former partner can potentially stretch forward into the future for many years. Depending on how their life, and your life pans out, on or other of you could become liable for debt or to share in property gain. Be very clear–dividing up your existing assets and moving on is not a property settlement.
For more detailed discussion about the complex area of property and financial separation, download Tribe’s Guide to How Property Settlement Works.
Important time frames for property settlement
You have only 12 months after divorce, or two years after a de facto separation, to apply to the family court for a property settlement without needing its special permission. Many people are caught out with these time limitations.
A married or de facto partner is liable, under the law, to provide income support for the other after separation to the extent that they are reasonably able, if the other person is in ‘immediate need of financial assistance’. This is whether or not there are children involved. It is quite separate from the issue of child support.
If the person with more resources is unwilling to support the poorer partner in this situation, that partner can apply to the court for ‘spousal maintenance’ or ‘de facto partner maintenance’.
Spousal or de factor partner maintenance is almost always temporary and is payable in the immediate aftermath of separation.
The law also provides that a biological father is liable to pay for the maintenance of the mother of his child around the time of childbirth, whether or not he is in or has ever been in a relationship with her.
Talk to Tribe about getting a professional opinion about your legal prospects under a property settlement, about drafting your Terms of Settlement or Application for Consent Orders or for coaching on negotiating your property settlement.
Parents are liable to pay expenses associated with the care, welfare and development of their children from the date of their birth. They are liable to pay child support from the date of separation. Parents can pay the amount calculated under Australia’s child support scheme, or they can choose to pay more. They have the option of having the money collected and distributed through the child support system, or they can make a child support agreement to make payments separately and privately.
The amounts payable under child support law are calculated by a reasonably complex set of factors. The Department of Human Services can provide the necessary information about child support assessment. Do this immediately at separation.
Any cash held in joint accounts may be withdrawn by either partner at any time. If the money is used for reasonable expenses arising from separation, or for ordinary living expenses, this probably won’t be accounted for in the later property settlement. So if you need to use it, use it.
Similarly, any credit cards that may be legally used can be used and up to their limits. If you don’t want this to happen, speak to your bank or credit service provider as soon as separation seems imminent.
Get a separate bank account in your own name as soon as possible when you know or strongly suspect that you are going to separate.
Marshalling the data
To make sensible decisions at the time of separation and to prepare for future negotiation, you need a reasonably accurate understanding of the full extent of your assets, liabilities, expenses and income. You will need to make some lists about these.
Don’t try to work out (or negotiate) your property settlement now. The lists are to enable you to make the best possible decisions around the most pressing tasks at separation, including:
- paying for a second household and affording a new life
- what might be sold
- what to take when you leave (including financial data).
Each partner should make their own lists. You also need to find out as much as possible about the other person’s financial state while there is still an opportunity. Both of you need to start thinking and talking about creating independent responsibility for personal finances and arrangements.
Make four basic lists: Assets. Liabilities. Income. Expenses.
After making the basic lists, make another list about what you don’t know: either about the existence of the items or their value. Then start to think about how you’re going to fill the information gaps…
Financial and other records to take when you leave
If you are leaving, take with you:
- all of your personal documentation
- copies of all records of past financial or property dealings
- either the originals, or several certified copies of your marriage certificate and the children’s birth certificates; and
- your, and your children’s, passports (if the children are with you or there is a genuine risk they will be taken overseas without your consent).
Try to get copies (or images) of any records of your partners assets (all of their accounts including superannuation), liabilities, income, tax returns and business interests.
Disposal of property by one party
Some partners start to try to shed assets at separation to avoid their inclusion in a property settlement at, or even before, separation, to avoid sharing the benefits of the sale with their former partner. They may do this by trying to sell an asset.
You can apply for an injunction in the family court to stop your partner from getting rid of property and taking off with the proceeds.
New things for the new house
You can use joint funds to set up your new household. And you can ask your partner to contribute.
If you drive a certain car, you should keep it and make payments for it, if you can. If you cannot afford this, you can ask the other party to assist. It may be better for expensive cars to be sold.
If there is only one car, the person with whom the children are living, or who has the greatest need, should keep driving it.
You can arrange transfer of registration, if necessary, now, or you can wait until later.
Electricity, telephone and other services
If your utility services are in joint names, or in your partner’s name, speak to the supplier about an account transfer. You may need to be disconnected and reconnected.
There are many stories about angry partners using control of utility service accounts to wreak havoc at the former family home. It is best if your own home’s accounts are under your exclusive control.
Allowing your partner to continue to have access to credit accounts funded by you may not be a good idea.
Talk to your credit card provider about closing secondary card access or joint accounts. Let your partner know about any changes.
Undoing a joint mortgage is probably not going to be arranged until the property settlement or sale of the property. In the meantime, separating partners need to come to agreement about who is going to pay for what and for how long.
The person who remains in possession of the house would normally pay the mortgage, if they can afford it. If they can’t make the entire payment, they might make a lesser contribution.
Any partner, whether in or out, who continues to contribute to the mortgage, will be able to argue for a significant share of any capital gain between separation and settlement.
On the other hand, there likely won’t be dollar-for-dollar adjustment for any mortgage payments in the final property settlement.
Most banks will suspend mortgage payments for financial hardship at separation.
You will remain liable after separation for any debt in your name or in joint names. This is whether you are getting the advantage of any asset secured by the loan (e.g. a business loan or an asset in the possession of one partner only) or not. Although spouse maintenance can come into play, try to agree payment arrangements that align with possession and use of the secured asset.
Your Will remains valid in the terms in which it was written if you die between separation and divorce. If you die without a Will between separation and divorce, property may pass to your former partner under your state or territory’s intestacy laws.
It is good idea to make a new Will immediately after separation.
Property owned as joint tenants
You may have a mortgage that identifies you and your partner as joint tenants. Many people do. If this is the case, if you die before property interests are adjusted at settlement, your interest in the property will pass directly to your former partner.
You can avoid this by making arrangements for the property to be held as tenants in common rather than as joint tenants. Talk to your bank and to the land titles office in your state or territory to find out more.
Contact Centrelink immediately upon separation to determine whether you are entitled to any new or amended Centrelink pension or benefit.
Talk to Tribe about making a plan to deal with all of the practical and legal challenges at separation.
If you have children, you’re likely very concerned to protect and support them in this new era of their lives. You might also be concerned about being able to continue your relationship with them and with your involvement in their lives. In this Chapter, we outline some of the ways in which the family law system can support the best possible outcomes for children and their families after separation.
For much more detailed information and additional topics about post-separation parenting, please download Tribe’s Guide to Parenting Agreements.
How do children cope with separation?
Children have great capacity to cope with change, provided they are appropriately supported. What they need you to do, more than anything, is to stop the conflict, if this is a feature of your separation.
They are likely, also, once they digest the reality of the separation, to have views about what the arrangements should be. It is important for children’s effective adaptation after separation that their views and experience in the process should be acknowledged and validated.
What about 50/50?
In 2006, the law was changed to introduce the presumption, applying only in a family court case, that it’s in a child’s best interests for the parents to have equal, shared parental responsibility. This change was misunderstood by many people as the introduction of a principle of shared care or ‘50/50’.
To be clear, there is no principle of shared care, even as a starting point for consideration of parenting arrangements, under Australian family law.
The only consideration in the law about any arrangements for a child, including the amount of time the child spends with each parent is about what is in their best interests.
Post-separation parenting arrangements
What a child needs, ideally, are parenting arrangements that are in their own specific best interests, and in addition, are certain, stable, consistent and flexible. It helps, too, if there is strong communication between the parties, and arrangements for facilitating that communication into the future.
It is important that the arrangements that you both decide upon are age-appropriate. A young child may need shorter absences from each parent, particularly the primary carer. Teenagers need greater flexibility and accommodation of their individual preferences.
Well-thought through parenting agreements provide also for how joint decisions on major long-term issues will be made and for dispute resolution mechanisms.
You might need to make a temporary set of arrangements for the initial period after separation – to account for the transition time but also as a way to pilot-test how things might work (or not) – and then move towards a more settled pattern of contact over time.
‘Substantial and significant time’
The Family Law Act promotes arrangements, in cases that come before the court, that provide for substantial and significant time to be spent by each parent with the child. This would include time between the child and each parent:
- at weekends and on holidays
- on weekdays
- that allows each parent to be involved with the child’s daily routine
- that allows participation together in significant events and celebrations
Talk to Tribe about the options for your parenting agreement and troubleshoot practical parenting arrangements in our Parenting Agreements Advisory Clinic.
Family dispute resolution
In a family dispute resolution session, a neutral third party (a mediator) umpires a discussion between you and the other parent. They will help you to resolve your differences, to negotiate, to generate options for solutions, and to come to agreement about parenting arrangements.
If you are unable to work out a conflict between you and your partner, or even if you would simply like support in trying to reach amicable agreement about parenting after separation, and in the preparation of the form of your parenting plan, you should give family dispute resolution a try. Very many disputes about post-separation parenting arrangements are resolved in in this way.
See Tribe’s Guide to Parenting Agreements for discussion and description about family dispute resolution.
Disputes about parenting
If parenting arrangements cannot be successfully negotiated either privately between you or in mediation, you can apply to the court for parenting orders. It is usually necessary to have a family dispute resolution certificate before you apply.
See Tribe’s Guide to Going to Family Court as a Self-represented Litigant for detail about the process of applying to the court for parenting orders.
Other parenting issues
There are many other parenting issues that arise over time for parents after they separate. You might have questions, for instance, about relocating yourself, about travel with a child after separation, or more about court orders.
For treatment of these issues and many others, see Tribe’s Guide to Parenting Agreements and Tribe’s Guide to Going to Family Court as Self-Represented Litigant.
- Although if you are a Centrelink benefit recipient, you may be bound to inform Centrelink that your status has changed and your entitlements may be affected from the date of separation. ↑