HOW DO I LEGALLY SEPARATE FROM MY SPOUSE?

Simple answer is there are not any formal legal requirements for a “separation”. There are no forms to fill out, no statutory declarations to swear nor asking for court orders.

Separation is the ending of an intimate partner relationship, including the end of a marriage or de facto relationship. It is often a difficult time; it can be stressful, and you may feel unsure about what to do next.

Separation is an informal process. Separation occurs when at least one person in the relationship makes the decision to separate, acts on that decision and tells the other person. Your partner does not have to agree.

I’VE TOLD MY SPOUSE I WANT TO SEPARATE, WHAT NEXT?

A decision is made at the time of separation whether one of the parties’ moves out of the home, or you can separate from your spouse but still live in the same house. This can be for a few days, weeks, months or even years after separation.

To demonstrate that you are genuinely separated you usually need to be able to show that you no longer share the usual activities of a relationship, such as sleeping together in the same bed, shopping and eating together, entertaining friends, and socialising as a couple.

If you have separated recently, you and your former partner will need to make some immediate decisions about practical issues concerning your children and/or your assets like property and debts. Some of the things you might need to consider are:

• where your children live and who will take care of them;
• how you and your former partner will support yourselves and your children;
• what, how and when you will tell the children, other family members and friends;
• who will pay outstanding bills or debts;
• who will stay in the house;
• how will the rent or mortgage be paid;
• what will happen to any joint bank, building society or credit union accounts, and
• what will happen to the house, car, furniture and other property.

You may not be able to agree on all these things at the time of separation, but if it is safe to do so, it can greatly help you and your family if you try to reach a temporary agreement.

It is important to see a lawyer if you are considering a separation or as soon as you separate from your spouse. Planning and prompt action can assist to ensure you know and understand your rights, obligations and entitlements prior to making any big decisions.

IS IT BETTER TO DIVORCE OR SEPARATE?

In order to apply for a divorce, the couple must show they have been “separated” for at least 12 months. This is the criteria set out in Australian family law to establish that the marriage is irrevocably ended.

DO I HAVE TO WAIT UNTIL IM DIVORCED BEFORE WE CAN SPLIT OUR ASSETS?

No. You can in fact do a property settlement at any time from the moment you separate. You can also establish formalised parenting arrangements.

Are you in the process of separating from your spouse?  To discuss your situation with one of our Family Law Team contact Solari and Stock Lawyers on 02 8525 2700 or click here to request an appointment with one of our experienced Solicitors. 

Article written by Nikita Ward
Photo by Charlie Foster on Unsplash