There’s a lot to organise after a separation in Australia. Sorting out parenting arrangements and financial affairs can seem daunting if you don’t know what’s involved. But when our clients have a clear set of steps to follow, the whole process becomes more manageable. In this guide, we want to walk you through a typical separation process.
Key takeaways
Week one: The first steps to take after you separate
Confirm the separation date
The first step is generally to nail down the separation date. Knowing the exact date is important so you can complete the mandatory 12-month separation period before applying for a divorce. Some people worry that they need their former partner to acknowledge the separation, which can sometimes be a problem. But the Family Law Act only requires one party to believe that the relationship has broken down irretrievably and communicate that to the other party.
To reduce the chances that your former spouse can dispute the date in the future, here are some tips you may find useful:
Clearly state your intention to separate in writing. This could be by text or email. Having it in writing is important because it gives you evidence to point to in a dispute.
Take steps to give effect to the separation. This could include things such as closing joint bank accounts and informing government agencies like Centrelink of the separation. Keep documentation that shows the steps you took.
- Notify Services Australia of your change in relationship status within 14 days, so any payments or benefits can be adjusted.
Get important documents together
Many people don’t start parenting or property proceedings immediately. However, it can be good to locate the documents you’ll need so they’re on hand. This may include documents such as:
Financial documents.
Private health insurance policies.
Property documents.
Mortgage repayment information.
Identity and vital records (marriage certificate, birth certificates, passports).
- Vehicle registration certificates.
Try to gather your personal belongings and key documents early. Once one party moves out, retrieving these items can become difficult. You don’t usually need to make major legal decisions at this point. Keep a record of events, like the date you moved out or when you opened a separate bank account.
Make a written list of all assets and liabilities, both individual and joint. This will be important for property settlement negotiations later.
Consider your safety in the event of domestic violence
Your family’s safety is most important. You may want to meet with a legal representative. They can advise on matters like getting a protection order. These are known as a domestic violence order (DVO) in Queensland. There are resources available if you feel unsafe, including:
Lifeline: 13 11 14.
1800RESPECT: 1800 737 732
Are you at immediate risk? Call 000.
The first month: Sorting parenting and living arrangements
Beyond the first week, parties typically think about their living arrangements. If there are kids involved, this may be the time to have a discussion about what co-parenting will look like. You can put together an informal parenting plan to begin with. Most parents are able to agree on parenting arrangements without going to court. Even when arrangements are temporary, it’s best to put them in writing. This plan could be used as the basis of a parenting consent order later on.
You may wish to notify your child’s school or childcare operator so they can update your contact details and confirm who is authorised for emergency pickup. If you’re intending to maintain separate accommodation, this is usually a time to get settled and have an agreement in place about where your child will be staying.
You can keep living with your ex-partner during the separation. This is called ‘separation under one roof’. You’ll need to show the Federal Circuit and Family Court of Australia (FCFCOA) that you’re living separate lives. You can do that through an affidavit. The affidavit should demonstrate how your circumstances have changed, such as:
The end of any sexual relationship.
How domestic duties are divided.
Maintaining different social circles.
Considering your financial affairs
The financial picture changes for many of our clients post-separation. Some people don’t have an income at all if they’ve prioritised parenting. A new budget that accounts for your current finances is crucial.
We work with many clients who have a limited earning capacity. People can be affected by time out of the workforce and other issues. Financial support can be a big help. Consider what entitlements may be available, including:
Spousal maintenance, which can be agreed to alongside a property settlement.
A child support agreement. This has its own process. You usually need an assessment from Services Australia. Visit the Services Australia website for more information.
The first 90 days: Getting advice and planning your next steps
It’s time to start thinking about the long term. Once you’ve organised your living situation and assessed your financial matters, you may start formally dividing your assets. Informal arrangements can work initially. But you may wish to get a court order to make any agreements permanent.
Parenting and property orders
The FCFCOA only accepts arrangements that are in the child’s best interests. If you made a parenting plan with the other parent, you could base a consent order application on that plan.
The FCFCOA wants to make sure that property orders are fair (or, as it would say, ‘just and equitable’). It looks at the financial, non-financial, homemaking and parenting contributions each person made. It can also make adjustments based on each party’s current and future circumstances (such as age, health, income capacity and care of children).
Some clients worry that the other party is wasting or hiding assets. A lawyer can file for an injunction to stop them from selling property. They can also check whether there are any missing assets, like superannuation interests.
Family dispute resolution (FDR)
Litigation tends to be the most expensive and lengthy way to handle property and parenting matters. If you’re having trouble forming an agreement, a dispute resolution practitioner can help you sort through conflicts. Family dispute resolution is generally compulsory before you can file a parenting matter in court. An exemption may apply in cases involving family violence or child abuse.
Consider how safe family dispute resolution will be. The FCFCOA generally expects you to pursue dispute resolution before litigating a matter in court. But if you’re experiencing domestic violence, you may be exempt from that requirement.
Update your will
In Queensland, a divorce typically revokes any gifts to your former spouse included in the will. They’re also usually removed as an executor if they were nominated. However, your will won’t be affected while you’re separated. You may want to speak to a wills and estates lawyer about updating your will sooner.
Remember the deadlines
There can be a deadline for getting a court order. A married couple usually has 12 months from their divorce order taking effect to start an application for property proceedings. De facto partners generally have 2 years from their separation date. The FCFCOA may let you apply after that time, but this only happens in limited circumstances.
A lot of parties are more concerned with the practical issues they’re facing day-to-day than legal proceedings. But exceeding these deadlines can mean losing some of your entitlements. Taking steps to formalise agreements can give you more certainty and avoid disputes.
Get legal advice early
It can be useful to get advice sooner rather than later to make sure you know your rights and obligations. Even if you’re confident that you’ll be able to agree on critical issues, a lawyer can help you avoid entering an agreement that isn’t in your best interests.
Advice can be especially important if you have family violence concerns. Working quickly to get an interim DVO in place can keep you and your family safe.
Look after your wellbeing
Separation is an emotional and stressful time that can be hard to navigate alone, so it helps to seek support from professionals or community groups. Counselling can assist individuals, couples and families to end a relationship in a way that reduces hurt and supports respectful ongoing communication. For free phone support, you can call the Family Relationship Advice Line on 1800 050 321.
Conclusion
Separation can be an uncertain time for many parties. There’s a lot to organise, which can be overwhelming. But when you know the basic steps that are usually taken, it can be less daunting. You don’t need to do everything at once. Prioritising the steps properly may put you in a better position.
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