Separation and Divorce

What is separation in Australia?

Separation occurs when one party to a marriage or de facto relationship communicates to the other party that the marriage/relationship is over and that there are no prospects of reconciliation.

Separation can be initiated by one or both parties – “joint consent” is not required to separate. It is also possible to be separated while living under the same roof.

Whilst it is not a requirement in Australia to “register” a separation, the date of separation is important to keep a record of because the date will have implications as to the ability to apply for divorce and/or a property settlement.   Coulter Legal can also assist with advice on what to do before and after separation and look after your interests and the interests of any children.

How can I get divorced?

Divorce is just the legal end to the marriage. Applying for a Divorce Order or getting a divorce does not finally deal with parenting or property issues.

To apply for divorce in Australia (even if you married overseas) the following requirements must be met:

1. Either you or your former spouse must- Be an Australian Citizen;
   – Have lived in Australia for the previous 12 months; or
   – Regard Australia as your home and intend to live here indefinitely.
2. You and your spouse need to have been separated for a period of 12 months and 1 day prior to filing an Application for Divorce.
3. If you have been married for less than two (2) years, you and your former spouse must undergo counselling with a marriage counsellor to see if reconciliation is possible and obtain a Certificate if reconciliation is not possible or file an Affidavit setting out why counselling is not appropriate or not possible.

Most people can apply for divorce themselves online through the Federal Circuit and Family Court of Australia (the Court) website. However, there are some cases where further documents are needed (for example, if you and your spouse were living together under the same roof or reconciled for a short period of time for any part of the 12 month separation period) or you are required to attend the Court (for example if there are children under the age of 18). Coulter Legal can assist with the Application for Divorce and give you advice as to whether it is an appropriate time in your case to apply for divorce.

You can engage one of our experienced family lawyers to assist you with your Application for Divorce to ensure the specific rules and requirements are met so no delays or extra costs are incurred by you.

How long after separation or divorce can I make a claim for a property settlement or spousal maintenance?

There are time limits that apply to a claim for a property settlement and spousal maintenance following a divorce or separation.

You have 12 months from the date of your Divorce Order becoming final to make a claim for a property settlement or spousal maintenance.

For de-facto relationships, you have two (2) years from the date of separation to make a claim for property settlement or spousal maintenance.

If this time period lapses, you need to seek leave (permission) from the Court to apply for a property settlement or spousal maintenance.

To avoid your time period lapsing, it is generally best to begin the process of finalising your property settlement and spousal maintenance claims before to applying for a Divorce Order.

What do I do before and after separation?

Before separation

You should consider the following before separation:

1. Gathering and retaining your financial documents in a secure location.
2. Developing a list of your assets and liabilities.
3. Retaining your marriage certificate in a secure location.
4. Contact your bank or financial institution to prevent joint funds being accessed by your former partner without your consent or liabilities being increased without your consent, such as the balance outstanding on a mortgage increased. This may mean that joint signatures are required to withdraw joint funds from a bank account or to increase the amount outstanding on joint liabilities.
5. If there has been family violence in the relationship, seek advice and support from a family violence professional or service.
6. If there is property or land that is not in your name, obtain advice as to whether you can register a caveat over the property when ready to do so.

After separation

1. If you have children, contact Services Australia and find out how much is to be paid by you or is payable to you.
2. Ensure you have a Binding Death Nomination for your superannuation fund and consider whether your current nominated beneficiary of your superannuation entitlements is appropriate.
3. Refrain from using social media regarding your separation or former partner or spouse.
4. If you have a Power of Attorney in favour of your former partner or spouse, ensure it is revoked and have a new one drafted.
5. Look at your Will and consider if it reflects your wishes. If you do not have a Will, ensure that a Will is prepared reflecting your current wishes.
6. Seek advice from an experienced Family & Relationship Lawyer.

These steps do not have to be taken alone before or after separation. By seeking expert legal advice from one of our family lawyers, you will be assured you are dealing with these steps correctly and alleviate any confusion or other concerns you may have.

Wills and Power of Attorneys

It is important to update your Will and any Power of Attorney you have that includes your former partner. Please click here for more information.