We receive many inquiries seeking advice on separation. Here are some key points that we provide to those who are seeking advice on separation:
- Separation is different to divorce. Separation is when you have ended a relationship with your partner. Divorce is a legal process that clarifies that you are no longer legally married.
- There are no formal documents required when you are separation from your partner.
- You could be separated and living under the same roof.
Advice on Separation
Q1: I am considering a potential separation. Is there any documents required to formalise my separation?
For a separation, there are no legal documents required to formalise this.
However, you need to think of the method of communicating the message of separation with your partner, as the separation date may be vital in the following proceedings.
For example, a divorce application can only be made after 12 months of separation. If your partner disagrees with the separation date, you will need evidence to prove the date.
The notice can be given by yourself verbally, in writing, or by a lawyer writing a letter.
If you communicate verbally, we recommend you send an email or even text message to confirm the date when the memory is still fresh, or at least write some diaries.
Q2: Can I still live in the same property after separation?
Yes you can still live in the same property after separation. It is common for you and your partner to decide to separate but still need to live under the same roof due to financial situation, co-parenting, etc. In these circumstances, you are entitled to live on the property even if it is not in your name. I
f you are forced to move out or just feel uncomfortable living in the same property with your partner, moving out will not affect your entitlements to the property.
Having said that, certain criteria have to be met when separating under the same roof. So, if you intend to do so, make sure getting legal advice first.
Q3: What if I am too afraid of the consequences of bringing up separation against my husband?
If you are afraid of any potential physical violence or property damages, you could apply for an Apprehended Violence Order (AVO).
The court can make an AVO if you are experiencing or have been threatened with physical violence, are being intimidated, harassed, molested or stalked by someone, or have suffered property damage or been threatened with property damage, including harm to your animals.
Having said that, separation from husband still can be difficult, especially taking financial disadvantages and parenting responsibilities into consideration.
If your husband refuses your access to your joint funds, you are able to seek interim orders until the final orders being made. In relation to financial orders, the Family Court can order both parties to use certain portion of properties or sell them if needed. In relation to parenting orders, the court will look at the best interests of the children and order both parties to perform their parenting responsibilities appropriately.
Q4: What will happen to my children after separation?
If you and your partner have children under the age of 18, it is vital to consider parenting matters as soon as you decide to separate.
Both parents have equal shared parental responsibility, but that does not mean both parents need to spend equal time with the children.
Parents may enter into a parenting plan focusing on the needs and best interests of the children and update it as children grow and their needs change.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
