Separation

How can I legally separate from my partner?

To legally separate from your partner you need to decide to separate, act on that decision and tell your partner.

If you are separating, whether you were married or in a de facto relationship, you will usually need to start making decisions about arrangements for children and dividing finances.

For more information see, Resolving family law disputes.

Is the date I separate from my ex-partner important?

The date you separated from your ex-partner is important because there are time limits for starting a property case in the Family Court, including applying to the Family Court for consent orders about dividing property. The date of separation is also important when applying to the Family Court for a divorce. 

You should record the date you separate from your ex-partner in your phone or a calendar. It may also be helpful to record significant events such as changes to living, parenting or financial arrangements. If you receive Centrelink, you must also notify Centrelink within 14 days of any changes in your circumstances.

What is the time limit for starting a property case in the Family Court?

If you were married, you need to file an application in the Family Court within 12 months of the date your divorce becomes final. 

If you were in a de facto relationship, you need to file an application in the Family Court within 2 years of the date of separation. The ‘date of separation’ is the date either you or your ex-partner decided to end the relationship and communicated this to the other either verbally (by having a conversation) or through actions (by moving out). 

Once the time limit has expired, you must seek special permission from the court to start a case in the Family Court or to apply to the Family Court for consent orders. This special permission is called ‘leave’. Leave is not always granted, and it can be difficult to convince the court to allow the application. You should get legal advice about this situation as it is complex.

When can I apply to the Family Court for a divorce?

You must be separated from your ex-partner for at least 12 months before you can apply to the Family Court for a divorce.

If neither you nor your ex-partner are Australian citizens, then you will also need to prove that you have been in Australia for at least 12 months immediately before lodging your application for divorce. You can provide a copy of your visa grant letter or a recent VEVO check. 

When can I start a case about children in the Family Court?

There is no waiting time or time limit for starting a case about children in the Family Court. However, in most cases, people are required to try and work out their family law dispute by attending Family Dispute Resolution (FDR) first before they can apply to the Family Court for orders about children.

For more information see, Family Dispute Resolution (FDR).

What if we reconcile for a period?

After separating, you can move back in with your ex-partner for up to 3 months to try to reconcile. The periods before and after any reconciliation will be counted as one continuous period of separation. These periods must still add up to at least 12 months before you can apply for divorce. The time you spent together will not count towards the 12-month period of separation.

What if my relationship has ended but we still live in the same house?

If your relationship has ended, but you still live in the same house with your ex-partner, this is called ‘separation under one roof’.

You can apply for a divorce after being separated for 12 months, even if you were separated under one roof for some or all the 12-month period immediately before filing a divorce application. However, you will need to provide the court with some extra information to show your relationship had ended even though you were living at the same address. The extra information must be provided by filing sworn statements (called an ‘affidavit’) with the court at the time you apply for divorce. 

An affidavit providing extra information about the separation must be filed by the person applying for a divorce (or both people if it is a joint application), and from an independent person – for example, a family member, friend, or neighbour who knows about the separation. Each person must write a separate affidavit and should attend the divorce hearing in case the court would like to ask them more information.

The information in the affidavits should explain how and when your relationship changed, to show that it has ended. For example, the affidavits can include information about:

• you and your ex-partner no longer sleeping in the same room,
• you and your ex-partner dividing or separating property and finances, such as opening separate bank accounts and paying separate bills,
• you and your ex-partner no longer doing household duties for each other,
• you and your ex-partner preparing and eating meals separately,
• you and your ex-partner no longer going out or entertaining friends together, and
• you and your ex-partner telling your family and friends about the separation.

More information

Legal Aid WA

• Webpage - Get Help
• Webpage - Divorce

Family Court of WA

• Webpage - Separation
• Webpage - Separation under one roof 
• Webpage - Emotional impact of proceedings
• Webpage - Affidavits

Reviewed: 16 October 2024