When a marriage breaks down it is important to consider how you will deal with this legally. There are several crucial components to permanently ending the relationship, including the separation/divorce itself, ongoing care for children, and financial/property settlements.

Separation or Divorce - What You Should and Should Not Do
Separation or Divorce – What You Should and Should Not Do

Whether you are a husband preparing for separation from your wife, or a wife preparing for separation from your husband, or a same-sex spouse doing the same, it is essential that you understand the legal process well. In this article we explain:

· What separation is and what it is not;

· How separation and divorce might be defined differently in the law, than according to certain religious practices;

· Why separation matters from a legal standpoint;

· The legal consequences of separation or divorce;

· What you should do when planning a separation or divorce;

· What you should avoid when planning a separation or divorce;

· How you should deal with finances/property on divorce.

At each stage of the separation and divorce process, we emphasise the importance of seeking out professional legal advice from family law solicitors.

What is Separation?

‘Separation’ is a term used when two people stop living together as a couple. In the case of a marriage, separation can be the first step towards the spouses getting a divorce. Although separation does not require any specific legal step or process, it does have significant legal consequences (see ‘what are the legal consequences of divorce’ below, for further information).

Related, but distinct from separation, are a range of other legal concepts:

· Divorce. This is a formal legal step which recognises the permanent breakdown of a marriage. To initiate a divorce, an application must be made to the federal court. Under the Family Law Act 1975, the only possible ground for divorce is where “the marriage has broken down irretrievably”. In order to satisfy the court that this is the case, you need to have been separated from your spouse/former spouse for at least 12 months and one day;

· The end of a de facto relationship. A de facto relationship is one where two individuals ‘live together as a couple’, but are unmarried/have no other form of legally recognised relationship. The focus in this article is on the separation and divorce of married couples, rather than de facto couples;

· The end of a civil union/civil partnership. These legally-regulated relationships have different names in different states and territories (for example, ‘registered relationships’ in NSW and ‘civil partnerships’ in ACT and Queensland). These relationships are ended by making an application to the court in the state or territory where the relationship is registered to end the relationship (in NSW this is called ‘revoking’ the relationship).

· Nullity. Some refer to this by the term ‘annulment’. A nullity is a decision of the court that no marriage is in place, even though a wedding ceremony may have occurred (see section 51, Family Law Act 1975). The most common ground for a ‘decree of nullity’ being granted is where there is reason to think that the ‘marriage’ was not truly consensual.

Are the Legal and Religious Concepts of Separation, Divorce, or Annulment Different?

In Australia, the civil law sets out concepts relating to relationship breakdown in Commonwealth, state, and territory legislation. These concepts are then enforced through the law courts. Different religions and churches may apply their own definitions of separation and divorce. For example, the Catholic Church in Australia has its own distinct rules and a tribunal process for considering a church annulment of a marriage within the Catholic Church.

In some countries, religious concepts and rules are directly enforceable in the law courts. For example, in Malaysia, separation and divorce for non-Muslims is governed by the national/federal Law Reform (Marriage and Divorce) Act 1976, whereas for Muslims regional/territorial laws are applied in distinct Syariah courts.

Australia’s legal system does not work in this way. The legal rules and concepts for separation and divorce in Australia apply in the same way to everyone in Australia. Do keep in mind, however, that there are some aspects of separation and divorce law that are still determined on a state/territory basis.

Why Is Separation Important?

Separation is important from a legal perspective, as it fixes a date from which, after a certain period of time, divorce becomes possible. So how do we work out what the date of separation is? There is no clear rule for working out when the separation occurs: It is an overall judgement based on the facts of the case at hand.

In In the Marriage of Pavey (1976)[1], the Family Court placed emphasis on the ending of the relationship itself, rather than any physical act of separation. What determines the existence of that relationship (and hence, when it might end) is a holistic matter, but includes consideration of:

· The fact that the couple live together under the same roof;

· There being a sexual relationship;

· The presence of ‘mutual society and protection’;

· Raising a child together;

· Both public and private recognition of the existence of the marriage;

· Nurture and support within the relationship.

Other factors that might be influential include:

· The existence of financial inter-dependence;

· Completing domestic duties;

· Whether, and to what extent, government departments have been notified of a separation.

The date from when there is no longer a relationship in place, taking into account all these factors, can be interpreted as the date of separation.

It should be noted, however, that if you are thinking about the most important step to start the separation process, you need to communicate your desire to separate to the other spouse.

What Are the Legal Consequences of Separation and Divorce?

Couples report that separation and divorce is one of the most emotionally traumatic events that they go through in their lives. In light of this, it does not make sense to talk about the ‘pros and cons’ or ‘advantages and disadvantages’ of separation and divorce. However, there are a range of legal consequences that need to be considered as soon as separation is on the horizon. In fact, these are all matters that should be considered before even entering into a marriage. Spouses should consider:

· Property settlement and dealing with debts. Both parties can either come to a binding agreement on the division of property, or apply to the court for consent orders. If there is no agreement or consent, either party can apply to the court for a determination on their assets;

· The family home. If the house is not being sold and the proceeds divided, who will continue to live in the house?;

· Ongoing financial support or ‘maintenance’ payments. These are ongoing payments (as opposed to the ‘one-off’ payment of a property settlement’), from one spouse/former spouse to the other. If there is no agreement or consent, either party can apply to the court for an order for maintenance;

· Child support. If there are children of the relationship, what ongoing financial support (‘child support’) will be provided?;

· Living arrangements for children. What will be the ongoing care and access arrangements for children? Parents can agree to an informal parenting plan, and/or apply to the court for a parenting order.

What You Should Do When Planning a Legal Separation of Divorce

There are a range of immediate practical matters that need to be considered once a couple have decided to separate. These include:

· Determine who will move out of the house (perhaps temporarily). Note, that it is possible for a couple to be separated and yet remain living in the same house;

· Come to temporary care arrangements for children;

· Determine how pressing financial matters be addressed;

If you are struggling to come to agreement on these matters, you should consider the possibility of family dispute resolution.

Note that, if informal arrangements, family dispute resolution or mediation have not been successful, it is possible to apply to the court for temporary orders.

Once pressing matters have been dealt with, you should work out as quickly as possible how you will take the legal steps to permanently end the relationship on a legal basis. This includes:

· A full and final settlement of all property from the marriage (unless it is otherwise excluded by the Family Law Act 1975);

· An agreement for any ongoing financial support ‘maintenance’ payments;

· A long-term agreement on childcare and parental matters, including child support.

Whether in the short-term or the long-term it is important that you seek out advice from a specialist family and divorce lawyer to ensure that your legal rights are protected.

Ideally, spouses will come into an agreement between themselves. However, if you are unable to come to such an agreement, we can help you with mediation services and, if necessary, applying for court orders.

What You Should Avoid When Planning Legal Separation or Divorce

As well as active steps you should take, there are also a range of steps that you should not take in anticipation of separation or divorce:

· Do not attempt to turn children against the other spouse. As well as being damaging for the children, this may not help your case, if it ever were to go to court;

· Do not breach any parenting plan, court orders (including consent orders), and agreements (whether legally binding or otherwise). This may affect your chances of success in court at a later date;

· Do not take children overseas without permission. This could be a criminal offence;

· Do not unnecessarily delay final settlement of financial and property matters, or arrangements for the care of children. The quicker you can come to a permanent solution, the better for all involved.

How Should Property Be Divided on Separation?

As the marriage is over, there will need to be a decision made about finances and assets. This is both a matter of dividing any existing property of the spouses and, where required, ensuring that there is ongoing financial maintenance for one of the spouses.

Under the Family Law Act 1975 (see section 79), after a marriage breakdown a range of matters will be taken into account to determine how assets are to be distributed. These considerations, which are similar to those that apply to the breakdown of a de facto relationship include:

· assets and debts held by the couple;

· direct financial contributions from each spouse;

· indirect financial contributions from each spouse;

· non-financial contributions, such as responsibility for caring for children; and,

· anticipated future needs of each spouse relating to matters such as age, health, childcare and the ability to earn.

The court also has the power to require one spouse to provide ongoing financial support payments (‘spousal maintenance’) to the other spouse (section 27 of the Family Law Act 1975).

A useful divorce and separation financial checklist is available at Moneysmart.gov.au.


Separation and Divorce are two key steps towards finalising the end of your marriage. These steps need to be carried out in conjunction with agreements, settlements, or court orders in relation to property, financial support, and parenting arrangements.

For specialist support from divorce and separation lawyers in NSW, get in touch with us today.

[1] 25 FLR 450 at 455.