How married and de facto couples can legally separate

Do you need help with legally separating from your partner? Are you unsure of what to do now? If you are thinking about separation, it is important to know your rights and the services that are there to help.

If you do decide to separate, there is nothing that you need to do and no document you need to sign to confirm that you and your partner are separated. You do not have to apply to a court, or complete any formal documents to say you are separated, aside from practical things such as notifying Centrelink and Medicare.

Ending a de facto relationship

A de facto relationship is when two people, who may be of the same or opposite sex, are not married but live together or have lived together as a couple on a genuine domestic basis. You do not need to go through any formal process (such as applying for divorce) to end a de facto relationship.

Ending a marriage

If you are married and you want to formally end the marriage, you will need to apply for a divorce. If you do decide to stay married, then this may affect your rights and responsibilities with property and your will. To re-marry, you must first divorce your ex-partner.

Australia has a ‘no fault’ divorce system, which means that to apply for divorce you just have to show that the marriage has irretrievably broken down. To prove ‘irretrievable breakdown’ of the marriage, you must be able to prove that you and your spouse have been separated for 12 months with no likelihood of getting back together. If during that 12-month period you did get back together, but for no more than three months before separating again, then this does not mean that you have to start counting 12-month period again. You will still be able to apply.

What do I need to do?

To apply for a divorce you or your spouse must be either an Australian citizen or resident, but you can still apply for a divorce here in Australia even if you were married overseas. If your marriage certificate is in another language, then you will have to arrange for it to be translated.

If you have been married for less than two years, then you are ordinarily required to undergo relationship counselling before you will be permitted to apply for divorce.

You can still apply for a divorce even if your spouse does not agree with it, or you can both apply for divorce together if you both agree. If you are making a joint application then you may not need to attend a formal court hearing for your application to be granted. However, if you are making a sole application for divorce and there are children of the marriage under the age of 18 years or part of the family prior to separation, then you or the lawyer acting on your behalf must attend. This includes any children who may not be the biological children of both parties to the marriage, i.e. step-children or children from previous relationships.

You can apply for a divorce without using a lawyer by getting an Application for Divorce Kit from the Family Law Courts.

It is important to note that a divorce does not sort out issues relating to children or property – these arrangements must be made separately. See the information about property settlement linked at the bottom of this page.

Where do I go for help?

If reading this article has raised issues for you, you can contact WIRE at any time between 9am and 5pm Monday to Friday.

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Who stays in the family home?

You may be leaving the relationship, but do you need to leave your home? Sometimes when you decide to end a relationship, your partner can become angry and resentful. This can be even more of a problem if you want to stay in your home and have asked your partner to leave. If your partner does not agree, you may need to get legal advice so that you can see what options are available to you to remain in your home.

Deciding what you want both now and in the future is very important. If you own or are buying your own home, your long-term goal may be to buy your partner out and move back into your home later on. If you and your partner own multiple properties, you may be able to live in separate properties as part of the property settlement.

If it is safe and comfortable to do so, you can still live in the same house as your ex-partner — ‘being separated under one roof’. The law recognises that separated couples can continue to live under the same roof but have separate lives. Being separated under one roof means that you may still have access to government assistance from Centrelink if you can show you live separate lives. It is important to get legal advice about how to go about this and whether you can negotiate this safely with your partner. This option may work well for some, but others may find it too emotionally trying even if the breakup was amicable. You need to decide what is right for you and your children.

More information about property and settlement

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