Separation
Separation is when you and your partner stop living together in a domestic or marriage-like relationship. One or both of you may want to separate - you don't need to both agree to end the relationship.
The date of separation, and when you stop living together, are important dates in family law that you will need to know for your property settlement and divorce (if you were married).
Quick Answers Video: Separation and divorce
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How can I legally separate from my partner?
To legally separate from your partner you need to make a decision 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. Proving you have separated, and the date of separation is also important when applying to the Family Court for a divorce.
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.
Once the time limit has expired you have to seek special permission from the court to start a case in the Family Court or to apply to the Family Court for consent orders. Leave is not always granted. 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.
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 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 will some extra information to show your relationship had ended. The extra information must be provided by filing affidavits with the court.
An affidavit providing extra information about the separation must be filed by the person applying for a divorce (both people if it is a joint application), and from an independent person – for example, a family member, friend, or neighbour. Each person must put their evidence in a separate affidavit and should come to the court hearing in case the court would like to ask them for more information.
The information in the affidavits should explain how and when your relationship changed, to show that it has ended. For example:
- you no longer sleep in the same room,
- you have divided or separated property and finances,
- you have stopped doing household duties for each other,
- you prepare and eat meals separately,
- you no longer go out or entertain friends together, and
- you have told family and friends about the separation.
More information
Reviewed: 9 March 2022