Thinking About Separating – Marriage Separation Checklist
Your Compassionate Guide for When Relationships Falter
Separation — When Relationships Break Down
You didn’t enter your marriage or relationship thinking it would prematurely end, but sadly, life’s challenges mean that the union isn’t going to last — meaning you need our Thinking About Separating – Marriage Separation Checklist.
Often, people stick their heads in the sand, hoping the problems will go away. Unfortunately, relationship troubles and issues rarely resolve themselves — if anything, they can be exacerbated and result in a crisis. This can be particularly concerning if children are involved.
When thoughts of separation start entering your mind, it’s time to take positive and considered legal advice. This isn’t a negative step, nor an acceptance that matters are unresolvable. It’s simply a proactive move to ensure you act in your best interests — delivering immense reassurance and comfort.
Falzon Legal is Parramatta’s specialist in separation matters. Guiding you with comfort, patience, and empathy — we will outline your options, rights, and possible actions for Divorce, separation, and annulment.
Separation vs Divorce vs Marriage Annulment
Initially, it’s worth considering the idea of separation, and how it’s related to both Divorce and marriage annulment.
Separation occurs when one or both parties in a partnership decide to sever relations. This can be if you’re part of a marriage or de-facto relationship — and with the intention of it being a temporary action, or a permanent state of affairs.
Typically, in law, it requires the following three steps to be proven as separation:
- One party has the opinion that the relationship is finished.
- That party has indicated to their partner that they consider the relationship over.
- Their actions indicate its cessation — such as moving out of the home, telling family members of the split, and living separate lives.
You do not have to sign any legal document, or attend court, to separate. Although, seeking legal advice is prudent and beneficial.
Divorce is instead a legal dissolution of marriage that must be actioned in the FCFCOA (Federal Circuit and Family Court of Australia).
Once completed, a Decree Absolute permits either of the parties to then remarry.
Marriage annulment, however, voids the marriage from its very inception — basically, declaring that the union was never lawful. This can be for numerous reasons, such as bigamy, incest, fraud, or false representation.
Therefore, while separation has a different meaning from Divorce and annulment — they are all interrelated.
An application for Divorce can only be made after the parties have separated for at least 12 months. And, although applying for an annulment requires no time period of separation, it’s perhaps understandable that the parties will separate — when one partner discovers their marriage was, for all intents and purposes, never legal.
Does Separation Mean Living Apart in Australia?
Legally, no — despite the word separation suggesting the idea of distance.
Undoubtedly, when partners decide to separate — that is, sever normal relationship ties — one party will typically leave the once-shared home. However, this isn’t always possible, advisable, or financially achievable.
When couples decide to separate, and both remain in the same residence, this is known as separation under one roof. If this occurs as a precursor to Divorce, the Court will ask for additional evidence — if the time spent in the shared home is to be eligible for the 12-month separation period.
In the form of an affidavit, you provide information to the Court demonstrating that, while living in the same house — you and your partner have separated. Often this may include:
- Changes in the marital bed — i.e. sleeping arrangements.
- Amendments to normally shared family outings.
- Evidence that finances are divided — e.g. individual, not joint, bank accounts.
- Reduction/end of performing duties within the house for each other — for example, cooking dinner.
- Evidence that your separation has been told to friends and family.
- Explanation of why, despite being separated, you remained under one roof.
- Accommodation arrangements for children under 18 years.
- Any Government authorities you have advised regarding benefits, such as Centrelink.
Thinking of Separation Under One Roof? Speak to Us Now About Your Duties and Creating an Affidavit
What Happens to My Children in Separation?
With separation, there are no set rules on the caring arrangements for children post-split. Parents can agree and establish whatever format they wish — as long as they are appropriate for the children’s welfare.
That said, it’s an obligation for both parents to deliver financial support for their offspring until the age of 18. This duty doesn’t cease if one party remarries or enters another relationship. Although, any new partner has no legal requirement to provide support for a child that is not their own.
If issues cannot be resolved regarding the care and support of children after a separation — the Court will decide. At all times, their decision is based upon acting in the child’s best interests.
Who Gets the Assets in a Separation?
If you and your former partner can come to an informal agreement — you can separate property and assets as you wish.
Although welcome, an unofficial deal offers you no security — concerning if there are trust issues with the other party. That said, Falzon Legal can help you formalise unofficial agreements with a Consent Order.
If you cannot reach a deal, you will need to address matters of Property Settlement with the FCFCOA.
Settlement in a Marriage
As mentioned above, you must be officially separated for one year before you can make an application for Divorce. You then have one further year to apply for a Property Settlement with FCFCOA — effectively, the Court decides how assets are allocated depending on both equity and need.
Settlement in a De-Facto Relationship
After splitting from a de-facto relationship, you have two years in which you’re permitted to apply to the Court for Property Settlement. Should this time frame expire and no application has been made — there are still routes available to request settlement.
How To Separate From a Marriage Checklist
At Falzon Legal, we know that separating from your partner or spouse is stressful, highly emotional, and worrying. Often, you don’t know which way to turn first, what to do, or who to speak to — especially if this is your first experience of a long-term split.
We are here to help — easing your anxiety, relieving your strain, and increasing reassurance.
Our expert team of specialist separation lawyers have put together a comprehensive and free downloadable Separation Checklist for Australia — a crucial guide that outlines 10 practical steps for separation.
Not just relieving your concerns, but also delivering proactive routes to promote your and your children’s best interests, ensuring your actions aren’t at the detriment to any legal proceedings, and ensuring a smooth transition to post-relationship advice.
It includes tips and guidance on such matters as:
- Whether to stay or leave the family home.
- Determining a separation date.
- Arranging financial matters.
- Ensuring your privacy.
- Protecting your bank accounts.
- Making arrangements for your children.
- The importance of legal advice.
- Organising child support.
- Shielding your personal effects.
- Amending your Will.
- Attending to joint tenancy agreements.
10 Things You Need To Do Before Separating — Contact Us To Find Out More
Do I Need a Lawyer in Australia To Separate?
There’s no legal requirement in Australia to have a lawyer in order to separate — but it’s highly advisable.
Thinking about leaving your partner or spouse, and the resulting Divorce if you’re married, can be painful. Furthermore, it can be tough speaking frankly and candidly with others about private matters — especially legal professionals.
At Falzon Legal, we know this.
Relentlessly empathetic to your situation, we provide constructive and comforting advice to help you, your children, and promote your best interests. Patiently and considerately, we will navigate you through what, for most people, is a new, stressful and worrying process.
The advantages of seeking legal advice regarding a possible separation include:
Receiving Informed, Expert Knowledge
Asking for legal help doesn’t mean you’re about to start a massive court battle that leads to animosity and venom. In many cases, Falzon Legal can help orchestrate mediation or arbitration that leads to an amicable separation.
If this is not possible, our legal professionals can advise on your rights, options, the separation and Divorce process — and suggest actions, to follow or avoid, to ensure a smooth, affordable, and minimal-stress dissolution of your relationship.
Reassurance and Confidence
If you have never been through a separation before, it can be an emotionally challenging and worrying prospect. Usually, you would turn to your partner in these situations, but with a separation imminent — this is often not a possibility.
Not only will Falzon Legal reassure you of your legal rights in separation and its positive outcomes — but we can also offer experienced and comforting counsel. Knowing you’re not alone is immensely heartening and supportive during relationship breakdowns.
Building Constructive and Civil Agreements
If mediation and reconciliation are impossible — legal matters don’t have to be fought over in the Court.
In many circumstances, despite a separation being inevitable, it’s possible to build a constructive exit plan that is agreeable and acceptable to both you and your ex. Falzon Legal can help forge a mutually welcome Property Settlement — such as a Binding Financial Agreement.
Court Preparation
Should mediation or Property Settlement agreements be unacceptable, we can navigate you considerately through the court process.
While all circumstances are highly personal and individual, we can advise you on matters such as:
- How a fair and equitable division of assets would look.
- In what way custody and access to children are decided and agreed.
- Legal processes needed for both separation, Divorce, and settlement.
Answering Your Questions
Thinking about separation will lead you to 101 questions — sitting down for a chat with Falzon Legal is the best, and most accurate method, to find the answers. Not just giving you guidance, but also putting your mind at rest.
The most common queries we face include:
- How can my Superannuation interests be divided?
- In what way do my children receive financial support?
- I want to take my child out of the country, can I do that?
- How much time will I get with my children?
- What happens to the family home?
- If my child is sick, do I, or my separated partner, make the treatment decisions?
Falzon Legal — Compassionate Guidance on Separation
The end of a relationship is always upsetting, confusing, and stressful — Falzon Legal will patiently and considerately lead you by the hand through the process.
Specialists in separation and Divorce, we will deliver reassurance and comfort by explaining your options, offering proactive advice, and ceaselessly acting in your best interests.
Whether meeting in our Parramatta Office, your home, or a location of your choosing — we offer an initial free consultation to put your mind at rest, and answer your many, pressing questions.
Non-judgemental and relentlessly supportive, we can assist with providing mediation, informal and formalised property settlement agreements, and support for FCFCOA applications.
We cannot completely remove the heartache and pain — but we can share the load.
What To Do When Separating From Your Spouse or Partner FAQs
I’m Thinking of Separating From My Husband, What Should I Do?
The first step is always to speak to your partner or spouse. If no reconciliation is possible, it’s important you communicate that you consider the relationship has ended — this is crucial for any subsequent Divorce proceedings.
It’s always advisable to seek legal advice on your entitlements and duties — and download our marriage separation checklist PDF, which provides invaluable marriage separation guidelines.
When I’m Separated Before Divorce, Can I Date Other People?
Legally, there are no issues with forming another relationship while in a separation. However, out of respect for your spouse, it might be advisable to hold back until your Divorce is complete.
Is Divorce the Same as Separation?
No. In marriage, you need to be separated for a period of 12 months before you can make an application for Divorce. In de-facto relationships, the separation is the end of the partnership.
What Is My Partner Entitled to if We Split Australia?
Under the jurisdiction of the Family Law Act, any person in a de-facto relationship that subsequently breaks up, has the same rights as a married spouse.
Do I Have To Support My Wife During Separation Australia?
According to the Family Law Act, one party has a duty to deliver financial assistance to their spouse, or previous de-facto partner, should that individual be unable to address reasonable expenses from their personal finances.
What Is the First Thing To Do When Separating?
Tell your spouse or de-facto partner that you’re separating. Legally, divorce and property settlement actions require a defined separation date — so speak to your ex as soon as possible to ensure future procedures are not delayed.