In Australia, unlike in some other countries, it is not necessary to undertake a formal legal process to get separated. That is, you do not need to register your separation with any government body, nor do you need to sign any legal document. However, it is a good idea to inform government agencies such as Medicare, Centrelink, and the Child Support Agency.
Australian courts recognise that a couple can be separated but live under the same roof. If it is safe and appropriate (such as where there are no Family Violence concerns), separating couples may successfully negotiate to continue living under the same roof whilst maintaining separate lives. Family Lawyers are seeing more parties continue to reside together after separation. This is often due to financial pressures with separate residences but can also be because the parties do not want to create stress or disruption for the children. For example, the parties may want to avoid disruption for a child going through Year 12.
But how do you know if you are separated from your partner? Physical separation, such as having a separate bedroom or living somewhere else, does not equate to legal separation. Separation is about the intention to separate. For example, the intention to separate can be a mutual decision, or one of the parties communicates their intention to separate to their partner. After the intention to separate as a couple has been established, certain steps will need to be undertaken. For instance, some of the factors which determine legal separation include the following:
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- No longer “holding yourself out” to be a couple, in that you stop attending social functions, holidays and family outings together.
- Openly communicating with family members, friends and acquaintances that you are no longer a couple.
- Establishing separate bank accounts and dividing financial responsibilities.
- No longer being physically intimate with one another.
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It is important to note that not all of the above factors need to be met to be legally separated. Every situation is unique and will need to be assessed individually.
Determining when you have separated from your partner can be a complicated task. If you can agree on a date of separation, it is best to record it and move on to the next steps of creating a separate life from each other. The law requires couples to have an official separation date (even if still living under the same roof) for determining time limits in property settlement matters; and in the case of married couples, for being able to demonstrate to the Courts that a 12-month separation has occurred before an application for divorce is made (see our separate Article on Divorce).
Separation can be a complex and sensitive issue. It is important to seek legal advice early on so that the transition can be as stress free and smooth as possible. If you require further information or advice on Family Law matters, please contact one of our experienced Family Law solicitors by email at reception@wbrlaw.com.au or by telephone on (08) 8359 3444.