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What are the separation rules?


Seeking the assistance of a qualified family lawyer, such as those at EM Family Lawyers, can provide invaluable support and advice during this time, ensuring that you are well-equipped to manage the complexities of the separation process and work towards a resolution that best meets your needs and those of your family.

What is marriage separation before divorce?

Separation is the breakup of a committed relationship between two adults. Marriage separation before divorce refers to when spouses no longer live together as a married couple before officially getting a divorce.

In Australia, the primary requirement for divorce is that the marriage must have irretrievably broken down. To prove this, one or both spouses must demonstrate to the family courts that they have been separated for at least 12 months before making the divorce application and that there’s no chance of reconciliation.  

Key points about marriage separation before divorce include: 

  • The marriage must have irretrievably broken down 
  • Spouses must have been separated for at least 12 months before applying for divorce
  • No chance of reconciliation is required 

What are the legal requirements for the marriage separation process?

Marriage separation is an informal process without any formal legal requirements. However, suppose you are ever considering a divorce, or it might be an option. In that case, it is wise to gather the information that may make the divorce proceedings smoother. For example, the date of separation can be a crucial issue in divorce applications if spouses cannot agree. 

Additionally, consider living arrangements, mail redirection, access to bank accounts, credit cards, insurance and superannuation. There is a lot to consider now, and seeing a family lawyer for advice like EM family law is a great way to get guidance on the recommended consideration. 

Key points about legal requirements for marriage separation include: 

  • No formal legal requirements exist for marriage separation 
  • Establishing the date of separation is essential 
  • Disagreements about the date of separation can cause issues during a divorce application 
  • EM Family Lawyers recommend taking steps to establish the separation date

Can a marriage be separated if I haven’t told my spouse?

Although it is best to communicate clearly with your spouse about your intention to separate, separation can still occur without explicit communication. In some cases, actions speak louder than words, and demonstrating separation through actions, such as moving out or taking responsibility for expenses, can suffice. EM Family Lawyers can provide advice and guidance on navigating separation in such situations. 

Key points about separation without telling your spouse include: 

  • Clear communication with your spouse is recommended 
  • Separation can still occur without explicit communication 
  • Actions demonstrating separation can be sufficient 
  • EM Family Lawyers can provide advice in these situations

What does it mean to separate under one roof?

Separation under one roof occurs when a married couple wishes to separate but continues living in the same home for various reasons, such as financial constraints or providing stability for children. In these situations, proving separation to a court for the necessary time becomes more critical.

Key points about separation under one roof include: 

  • A married couple separates but continues living in the same home 
  • Proving separation to a court becomes more critical 
  • Various reasons may lead to separation under one roof, such as financial constraints or child stability

What evidence is needed for separation under one roof?

When separating under one roof, gathering evidence from the start is crucial to prove separation to a court. Examples of evidence include a signed document stating the separation date, moving into separate bedrooms, allocating responsibility for expenses, and making arrangements for children’s care. 

Key points about evidence for separation under one roof include: 

  • Gathering evidence from the start is crucial 
  • Evidence examples: signed document, separate bedrooms, expense responsibilities, and child care arrangements 
  • Establishing separate bank accounts and informing family and friends about the separation is also essential 

    What happens if we get back together?

    Suppose you and your spouse reconcile for longer than three months. In that case, the marriage separation period will cease. However, if you separate again, you will have to restart the separation process from the beginning. This means you must be separated for at least 12 months before applying for a divorce. EM Family Lawyers can provide advice on how to navigate the complexities of reconciliation and subsequent separations. 

    Key points about getting back together after separation include: 

    • Reconciliation for longer than three months ceases the separation period 
    • Separation must restart from the beginning if the couple separates again
    • Keep records of reconciliations and further separations for future reference
    • EM Family Lawyers can provide advice on navigating reconciliation and separation

    What about kids?

    Arrangements for children during separation can be particularly challenging due to the emotionally charged nature of separation. It is essential to remember that any arrangements made during the separation are not permanent and should prioritize the best interests and needs of the children. Family counselling can be helpful in working through these issues and provide stability for the children. EM Family Lawyers can assist in making decisions that are best for the children and parents. 

    Key points about children during separation include: 

    • Children’s arrangements during separation can be challenging 
    • Arrangements made during separation are not permanent 
    • Prioritize the best interests and needs of the children 
    • EM Family Lawyers can help with decision-making regarding children

    What else needs to happen?

    uring the marriage separation process, it is wise to take care of several other tasks, such as keeping a list of key dates, storing important documents in a safe place, and having a clear understanding of your financial position at the date of separation. Collecting this information can make the divorce application process smoother and better prepare you in case of a trial separation or divorce. In addition, EM Family Lawyers recommend seeking expert family law advice as early as possible to reduce costs, secure a settlement that meets your needs, reduce conflict, and expedite the divorce process. 

    Key points about additional steps during separation include: 

    • Keep a list of key dates and essential documents in a safe place 
    • Have a clear understanding of your financial position at the date of separation 
    • Collecting this information can make the divorce application process smoother 
    • EM Family Lawyers recommend seeking expert family law advice early in the process

     In conclusion, the process of marriage separation can be emotionally challenging and complex, particularly when dealing with children, finances, and living arrangements.


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    Members of our senior legal team are accredited Family Law Specialists. In the legal profession an Accredited Specialist is a practising solicitor who has demonstrated specialised competence in a particular area of law and has been conferred Specialist Accreditation by the Law Society under its Specialist Accreditation Scheme. Edwards Family Lawyers is a highly experienced specialist family law firm that has 3 accredited specialists working out of our offices in Sydney CBD and North Sydney.

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    When married couples separate, there is only one ground for the grant of a Divorce Order, and that is the irretrievable breakdown of the marriage. This is established by the parties being separated for a minimum of 12 months. In some circumstances, parties can be living under the same roof and still be able to establish this ground.

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    Edwards Family Lawyers can assist you and your spouse/partner to come to an agreement in relation to all financial matters and issues arising from the breakdown of a relationship, including the division of all assets and liabilities, spouse maintenance payments, superannuation splitting orders and child support departure Orders.

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    Opportunities for negotiation and settlement exist not only before proceedings are commenced, but also after proceedings have been commenced and right up until the time that the Court finally hears and determines the matter. Parties can settle a matter at any time.

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    The best interests of the children is the paramount consideration when determining the most appropriate and suitable arrangements for the children after a separation. At Edwards Family Lawyers, we encourage our clients to participate in the counselling or mediation services available to assist them to reach an agreement with their spouse/former partner

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    De Facto couples (including same sex couples) who separate after 1 March 2009 have the same rights as married couples. The rights and obligations of couples upon the breakdown of a Marriage or De Facto relationship are now all governed by the Family Law Act 1975. De Facto couples who separated prior to 1 March 2009 are still covered by the old State legislation

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