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    Family law
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THE LEAGLE BLOG
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  • Home
  • About us
  • Resources
    • Family law
    • Consumer rights
    • Neighbour disputes
  • THE LEAGLE BLOG
  • Sponsor the Eagle
  • Schedule an Appointment
THE LEGAL EAGLE - LAW MADE EASY
Family Law

How to separate

couple separate on couch

Separation can feel uncomfortable (circa 1941)

What is separation?

Separation occurs when you and your spouse or partner stop living together as a couple. You don’t need any official document to say that you have separated. Either or both of you may make the decision to separate, and tell the other person of that decision. One of you may then decide to move out of the home.

It is possible to be separated but still live in the same house.
This is actually called being separated “under the one roof”. Being separated this way will mean that, for example, you no longer sleep in the same bed and no longer have sex together. Additionally, it means you cook and eat separately and clean up after yourself. In essence, the two of you lead completely separate lives.

So, if you have this sort of separation where you are still sharing the same house, don’t be tempted to start doing your partner’s washing and ironing; or making them meals; or having an occasional ‘sexcapade’, because all these things are clearly NOT in the eyes of the court, what separated couples do. Got it?

separate beds coupleI don’t think so (circa 1922)

The law is clear that a divorce order shall be made, if, and only if, the court is satisfied that the two of you separated and thereafter lived separately and apart (even if under the same roof) for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.

However, the law states that if you were to separate and then restart your relationship for a few months and then separate again, the period you got back together won’t count towards the 12 month separation period. So you will have to stay separated for an additional few months to meet the 12 month requirement to get your divorce.

Who to advise when separating

You may need to tell others that you and your spouse or partner have separated.
For example, Centrelink, if you receive benefits already or if you need financial assistance.  You might also need to
talk to the Child Support Agency if you have children living with you, as you might be entitled to child support from your husband, wife or partner.

You may also wish to consider notifying someone at your children’s school about the separation. Schools can often provide additional support to your kids if they understand there’s a change in your relationship.

Although you may want to have as little to do with your spouse or partner at the time of separating, it is important you both organise a few things. Try and sit down and as calmly as possible, work out what to do with the children; your shared financial commitments; and your living arrangements.

For example, with the kids:

♥ How and when will you talk to your kids about the separation?

♥ Who will the kids live with and how will they be cared for and supported, both financially and emotionally?  It’s on this point you both should get advice from the Family Relationship Advice Line 1800 050 321 on drawing up a parenting plan.

The above two questions are really important because kids are so sensitive about separation and divorce and they often endure much sadness in silence. Let them know what is happening, encourage their feedback and respect and act on it where it is possible. If you both can work out arrangements that don’t upset your children’s home environment and regular routines you will be going a long way to helping them cope.

And in 95% of cases they love both of you, so don’t make each other out to be the devil.

♥ Does one of you move out, or do you try the separated “under one roof” scenario? Here, you should assess whether either of you can afford to move to another place.

♥ How are the various ongoing bills such as the mortgage, home maintenance, food, utilities and school related expenses going to be paid?

♥ Do you really want a bill in both your names if only one of you is using a service? (eg. phone)

♥ What happens to joint accounts you and your spouse or partner have? If wages are being paid into them, is it wise to allow this to continue? Talk to your bank about rearranging this. And don’t forget any jointly held credit and store cards.

♥ What happens to things you might share like cars and household items?

♥ If you’re joint tenants of your property you may want to think about getting a simple caveat (in this case, a legal order lodged on the title which stops the property being sold or further mortgaged) to insure that no sneaky additional mortgages/loans are taken on the property by your spouse or partner.

♥ Should either of your names on any insurance policies be changed? And don’t forget policies where your spouse/partner is the beneficiary, you may not want that anymore.


Working these things out and getting a temporary agreement can create some certainty and relieve much stress over the course of your separation period. And if you believe you’re going to need some help in organising this, whether it’s because your spouse or partner is going to be difficult or because you just want to work with a neutral third party, then the skilled staff at the Family Relationship Centres can help. They’re really good at helping people move forward towards not just an agreement, but your lives.

Call them on 1800 050 321 (Mon-Fri 8am-8pm; Sat 10am-4pm)

or visit Family Relationships Online

Other things to consider…

♦ Make sure you have (and will continue to have) access to any funds in joint accounts – and if you’re worried about this, consider withdrawing funds and setting them aside in an account which only you can access. You may even want to discuss closing the accounts and splitting the proceeds.

♦ If you’re the one moving out, take your personal documents (passport/identification documents and your personal financial records etc).

♦ And don’t forget your personal effects (clothes, sentimental items, photos, and personal devices like laptops and phones etc). There might be a lot of stuff involved, so be organised in gathering your things.  It is not wise to leave things behind believing that it will be easy to retrieve them later.

♦ If you’re the one staying, and you would like to keep the property as part of your future settlement, make sure the property and grounds are well maintained.

♦ Changing your will. You always need to do this when you divorce as a Certificate of Divorce invalidates any Will you made during your marriage. However, as you’re now separating…Do you really want your not so loved one getting everything if you get hit by a bus before the divorce is finalised?

♦ Redirecting your mail.

♦ Does your partner know your PIN numbers of anything? Then it’s time to change them.


Get me out of here (Circa 1988)

Here’s a helpful brochure written by the Family Court that includes information about:
◊ The social and legal effects of separation.
◊ The services provided to families by the Family Court and the Federal Circuit Court
and also by government, community and other agencies.
◊ The steps involved in court proceedings.

You’re not alone… there are people ready to listen to you and help.

Counselling and support services

Name Phone number What they’re all about
1800 RESPECT 1800 737 732 National sexual assault, family and domestic violence counselling service
beyondblue 1300 224 636 Provides information on depression, anxiety and related alcohol and drug problems, available treatment and where to get help
Child Abuse Prevention Service 1800 688 009 Friendly telephone support workers offer information, referral and ongoing support to those affected by child abuse, concerned about the welfare of a child, or needing family or parenting support
Family Relationships 1800 050 321 Provides all families, whether together or separated with access to information about family relationship issues, ranging from building better relationships to dispute resolution
Financial Counselling Australia 1800 007 007 An organisation that can help with the organising of budgeting and financial things relating to separation
Kids Helpline 1800 551 800 Professional counsellors provide free and confidential counselling for young people aged between 5 and 25 dealing with separation and divorce
Lifeline 131 114 Trained volunteers provide free telephone counselling 24 hours a day, 7 days a week
Mensline Australia 1300 789 978 Provides a free, 24 hour phone support service for men with relationship and family concerns

State Legal Aid offices

If you need legal assistance but have limited means, give Legal Aid a call:

ACT                      1300 654 314
New South Wales   1300 888 529
Northern Territory  1800 019 343
Queensland           1300 651 188
South Australia      1300 366 424
Tasmania              1300 366 611
Victoria                 1300 792 387
Western Australia  1300 650 579 

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Family Law

Family Law – The Big Questions

vintage-family-photos-7

This is the FAMILY LAW section of The Legal Eagle

I imagine you’re here because you’re a little anxious about something to do with your relationship or your marriage, and you want some easy to understand information about what direction you should head in, and your rights under the law in Australia.

Take a look at the questions below and see if they apply to you. Each question has a link to answers and resources that may help you. By the way, whenever I have to mention a ‘legal’ term that sounds like it comes from another planet, I promise it will be explained to you in plain English.

Click the links below to get easy to understand answers

MARRIAGE AND SEPARATION

I want to save my marriage – What help can I get? 

What are prenups and financial agreements and are they valid?

How do I  legally separate from my spouse?

Can we separate and still live together?

Divorce Court 1948       DIVORCE COURT 1948

What is the process for getting a divorce?

What happens to my kids when I separate or divorce?

What is the best way to make a parenting plan after we separate?

What happens to my home, property, super and pets if I divorce?

When can I get rid of his or her stuff?

DE FACTO RELATIONSHIPS
(Including same sex relationships without marriage)

How do you end a de facto relationship? 

What’s the legal difference between ‘de facto’ and being married?

Can de facto couples have prenup of financial agreements?

What happens to my kids when the relationship ends?

How to make a great parenting plan after separation

What happens to my home, property, super and pets when your relationship ends?

When can I get rid of his or her stuff?

DIY  DIVORCE  AND SELF REPRESENTATION

Is it possible for me to do my divorce paperwork without the need for a lawyer?

The secrets that help to win family law cases

Do dads get a hard time in the family courts?

6 Things to avoid when finding a lawyer

I need low cost legal help so I can DIY my family law matter – Can you help?

CHILD SUPPORT

When am I entitled to child support and how do I get it?

TIPS TO SURVIVING YOUR BREAKUP AND STAYING SANE

Divorce and separation – the survival kit

De-stressing and living post separation

FAMILY VIOLENCE

In the eyes of the law, what is family violence – Where can I get help?

GRANDPARENTS

What rights do grandparents have to see their grandkids? 

SEPARATION AND SOCIAL MEDIA USE

Family Court and Social Media – Avoiding Trouble

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