Key Takeaways
- Separation marks the beginning of the end of a marital relationship but does not legally end the marriage. It requires no legal process but is crucial for applying for divorce after a 12-month period.
- Achieving financial independence is key, involving gathering financial documents, opening a separate bank account, and managing joint finances.
- Early legal advice is vital for understanding rights, handling parenting arrangements, child support, and navigating potential disputes, ensuring a smoother separation process
Navigating a separation in Australia demands a clear plan. A plan is essential as a separation isn't as simple as ending a relationship and moving out. Many things need to be considered and dealt with, especially if you have children.
To help, our divorce lawyers Sydney have put together a separation checklist that will allow you to sort through the necessary legal, financial, and personal steps during this difficult time.
Keep reading to learn what you need to do when you separate from your partner.
What is a separation in marriage?
In Australia, a separation in marriage refers to the point at which a married couple decides to end their relationship but remains legally married to each other. This can be considered the first step towards the formal dissolution of the marriage (divorce). It doesn't necessarily require legal processes and is distinct from divorce, which marks the official ending of a marriage and requires the couple to have been separated for at least 12 months with no chance of reconciliation.
While a separation does not require a legal process, being aware of your separation date is crucial in ensuring that you are able to apply for a divorce in Australia, after the 12-month separation period.
How to prepare for a separation
Preparing for separation involves more than just making a decision. It's about reflection, acceptance, and strategic planning. And while financial and legal matters are incredibly important to be aware of and be prepared to resolve, your emotional and personal health matters too.
Below we've provided a checklist with some of the most important aspects of preparing for a separation, and you can find more information about how to prepare for separation here too.
To do: Creating a separation checklist
We've categorised the various tasks and requirements of separation to make it easier to understand all the matters that may be related to each other. These categories are:
- Financial preparation and independence
- Legal advice
- Parenting arrangements and child support
- Updating personal information and documents
- Emotional support and self-care
- Establishing a separation date
Financial preparation and independence
Gaining autonomy and financial independence are very pivotal elements of the separation process and can feel overwhelming. Some of the key steps to take in this area include:
Gather financial records
Collecting relevant financial documents, such as financial records, will help you to prepare for your separation. It's necessary to compile documents like:
- Pay slips
- Bank statements (including credit cards)
- Tax returns
- Rent/mortgage agreements
- Investment documents
- Loan agreements
These documents are important for a smooth property settlement process. Documentation related to personal and shared assets, as well as liabilities, will be relevant in property settlement negotiations and may support claims for spousal maintenance.
Additionally, recording detailed balances, purchases, and payments from credit card accounts, including interest free purchase cards, ensures accuracy in property settlements and clarifies debt responsibilities related to payment and debit orders.
Opening a separate bank account
In order to manage personal finances, you will need to open a separate bank account that will be used to receive post-separation income like your wages, salary, and Centrelink payments. This also ensures that you have access to funds, protecting your financial interests.
Consider how you will manage joint accounts and finances
It's common for finances to become entwined in a marriage or long-term relationship, so in addition to opening your own bank account, it's important to figure out how to manage any joint bank accounts, investments, or liabilities. If possible, aim to eliminate as many of the potential liabilities and joint accounts as possible to ensure that neither party is misusing these resources. This may also require a conversation regarding how your shared responsibilities, such as a mortgage, may be handled in the future.
Seeking legal advice
It's never too early (or too late) to seek legal advice. In fact, early legal advice can ensure a clear understanding of one's rights and entitlements and help to avoid causing minor issues to become major ones. Legal advice can also help with understanding the implications of separation on parenting arrangements, child support, spousal maintenance, and even the details of wills.
Seeking legal advice before separating from a partner is key to handling all related processes correctly as each couple's situation is unique in a divorce separation in Australia. And in the event of disputes or aggression post-separation, family lawyers can provide clarity and options for obtaining enforceable orders.
Parenting Arrangements and Child Support
Parenting after separation can be challenging, but with preparation, it's not impossible. As family lawyers we strongly encourage parents to ensure they think about the following:
Establishing temporary parenting arrangements
Establishing temporary parenting arrangements is crucial in providing stability for children during separation. A parenting plan is a written agreement between parents concerning childcare, which is not legally enforceable but serves as a guide and the aim should be to do what is in the best interests of the child – factors such as the child's age, needs, special requirements, logistics, cultural considerations, the child's views, and safety should be considered.
Calculating and managing child support payments
Calculating and managing child support payments is a crucial step to meet children's needs. The Australian Government's child support calculator estimates payments by considering taxable incomes, number and ages of children, and the time children spend with each parent. Additional factors such as multiple child support arrangements or receiving income support payments may influence child support liabilities or entitlements.
Updating personal information and documents
Refreshing personal information and documents forms a vital part of the separation process. Here are some of the documents and steps you should take:
Changing Contact Details
Changing contact details is vital to ensure proper communication during separation. You need to notify Medicare, Centrelink, and the Australian Tax Office of any change in contact details following separation. Updating mailing addresses for those who are moving is crucial, as well as ensuring details on driver's licenses and passports are current.
It's also important to inform children's schools, doctors, and accountants of the new contact details to maintain continuity of services and communication.
Reviewing Insurance Policies
You may need to review insurance policies and ensure they reflect up to date information to account for any changes in personal circumstances, such as removing one party from the policy. This includes insurance for house, contents, motor vehicles, private health, and pet insurance. This helps to prevent unsubstantiated claims being made.
Securing Important Documents
Securing important documents is an essential part of the separation process. It's crucial to secure all important official documents to avoid any potential issues with the legality or access to these documents. Key official documents to compile include:
- Marriage certificates
- Birth certificates
- Passports
- Bank statements
- Insurance policies
- Car registration
- Business papers
- Property documents
Once gathered, these documents should be kept in a safe location such as a safety deposit box, fireproof safe, or with a trusted legal advisor to ensure they are protected and accessible when needed.
Emotional Support and Self-Care
Emotional backing and self-care are of utmost importance during the separation process. The emotional impact of separation can include experiencing loneliness, sadness, shock, hurt, anger, guilt, frustration, and sometimes feelings of relief or excitement for the future. It's crucial to maintain a healthy lifestyle during the stress of a relationship breakdown including taking care of yourself both physically and mentally too.
Finding Professional Help
Finding professional help can make it easier to manage emotional difficulties during separation. Services such as Relationships Australia and the Family Relationship Advice Line provide professional counselling and support for those undergoing separation. Professionals like psychologists and counsellors recommend therapy sessions to help separate negative thoughts and behaviours contributing to separation anxiety.
Building a Support Network
Building a support network is important to maintain social connections and receive emotional support during separation. Talking to family, friends, colleagues, or health and relationship professionals is encouraged. Avoiding social withdrawal is important; staying engaged with those who wish to help can provide much-needed support during the separation process.
Joining support groups can provide a community of individuals experiencing similar issues with separation, offering education, shared experiences, and emotional support.
Understand why the date of separation matters
The date of separation is pivotal in family court proceedings as it sets the baseline for asset distribution, and impacts property settlement and the time limit for filing for divorce. Determining this date can be challenging, especially when couples continue to live together due to financial reasons or child custody arrangements, despite being legally considered as separated under one roof.
Importance of a Clear Separation Date
A clear separation date is vital for legal decisions, including asset division. Courts consider contributions to the marital assets up until this date, and even after in some circumstances. Assets acquired post-separation may also be included in property division if the asset pool is calculated at the time the agreement is reached instead of at the separation date.
Hence, controversies over the separation's timing can result in in-depth legal scrutiny and impact property settlements, underscoring the need for a clear separation date in our comprehensive separation checklist.
How to Record the Separation Date
Recording the separation date is just as important as establishing it. You can document the intention to separate in writing, such as through a text message, email, or official correspondence via a lawyer. It's also useful to update the separation date with government agencies, including Centrelink, Medicare, and the Child Support Agency.
Informing friends and family about the separation promptly is essential, especially if you continue living with your ex-partner. These measures help ensure that the separation date is recorded accurately and can be used as evidence if disputed.
What not to do during separation in Australia?
While it's important to comprehend what actions to take during separation, it's equally imperative to understand what actions to avoid. For instance, do not take the children out of the country or interstate without your ex-partner's knowledge or consent. Avoid discussing your intention to separate with other people before discussing it with your ex-partner to maintain the possibility of reconciliation or an amicable relationship.
Do not post about your relationship issues on social media platforms as it can cause tension, miscommunications, and pressure on friends and family to take sides – and an even have legal ramifications. Always call the police if you are exposed to domestic violence to protect your safety and provide an independent record of the incident. These are just a few points to keep in mind during separation to avoid complications.
