Separation occurs when one or both parties form the intention to end the relationship. There is no formal document that you or the other party needs to sign, but you do need to:
- Tell the other party that you have made the decision to separate; and
- Act on that decision by moving out of the house or into another bedroom, separating the social and financial aspects of your life from your former spouse and communicating your separation to your friends and family.
When can I apply for a divorce?
You can file an Application for Divorce after you have been separated for 12 months. All divorce applications are now lodged online with the family law courts and can be lodged as a sole or joint application.
Who do I need to tell that I am separated?
You should communicate your separation to friends and family in case there is a dispute about the date of separation down the track. If you are in receipt of Centrelink benefits, you should inform the Department of Human Services of your separation straight away as it may affect your entitlements. It is also a good idea to speak to your children’s school and/or day care provider to let them know what is happening and to confirm who is authorized to collect your children.
What happens with the children?
Most importantly, parents need to ensure that their children are protected from physical, emotional and psychological harm.
There is no requirement to have a formal agreement in place regarding children’s arrangements. If there are no concerns about risk and you are your former spouse are able to communicate effectively about the children you may be able to put appropriate arrangements in place without the involvement of lawyers or the Court.
If you cannot reach agreement, the Court will determine parenting arrangements based on what is in the best interest of your child or children. Most importantly, the Court will consider the children’s right to have a meaningful relationship with both parents and the need to protect from harm or a risk of harm.
What happens with our assets?
Strict time limits apply in relation to the division of assets and seeking the assistance of the Court.
For de facto relationships – parties have 2 years from the date of separation to file an application for property settlement and/or spouse maintenance.
For married couples – parties have 12 months from the date your Divorce Order becomes final to file an application for property settlement and/or spouse maintenance.
If you are approaching the time limit for filing an application to Court, you should contact us for urgent advice from our family law experts.
