Separation - what it means
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What is separation and separation under the one roof?
Separation happens when you and your partner stop living together in a domestic or marriage-like relationship; at least one person in the relationship makes a decision to separate, acts upon that decision and communicates that decision to the other person. Your partner does not have to agree to the separation.
You can be separated under the one roof when you still live in the same house. If you are separated and still living in the same household, you may need proof in certain circumstances to support that separation has occurred (e.g. an affidavit from an independent person e.g. a neighbour or friend in divorce proceedings or a statutory declaration from the person in the relationship to show that separation has happened for Centrelink).
Factors that may support that you have separated, even though you continue to live under the one roof are
- sexual intercourse has ceased
- each of you do your own household chores e.g. does their own cooking, cleaning and washing
- you do not acknowledge yourselves in public to be spouses
- each of you goes about their own day to day business to the exclusion of the other e.g. does their own shopping, socialises with their own friends
- each of person is financially independent of the other.
No single factor is conclusive and the court will look at the situation as a whole in order to determine if a separation has happened.
Do I have to do anything to have a 'legal separation'?
No, it is more about how to show you are separated, if you need to. One person may move out of the home, or you can both stay but live separate lives. This is called 'separation under the one roof'.
There are no forms to fill in to become separated, but you may have to inform some organisations when you separate. For example, if you get Centrelink benefits or are entitled to them, you should tell Centrelink. If your ex-partner is a nominated beneficiary to your superannuation entitlements you may no longer want them to be. If so, let the superannuation trustee know. (If you have prior court orders regarding superannuation from a previous relationship, get legal advice if you want to change your nominated beneficiary).
What do I have to know about leaving?
When parties separate there are a number of issues relating to children, property and finances that need to be resolved. Many separating couples are able to reach agreement on these issues but should get legal advice before committing themselves to agreements which will affect their future rights.
If you decide to separate you should take personal documents, for example, identification, bank/cheque books, passports, any marriage certificate and any items that have sentimental value. You should also take things you need for yourself and the children, if they are going with you. You can legally take anything that you own yourself, or that you own with another person.
In most cases, the couple decides themselves which person will leave the home. If you cannot agree, it is possible to apply to court for a sole use and occupation order which forces once person to leave. You should get legal advice about this, because the order is only made in special circumstances.
If you have been subject to domestic violence, it is possible to ask the court for a protection order which requires the other person to leave the home. You should get legal advice about this, because the order is only made in special circumstances.
Without a sole use and occupation order or a domestic violence order, a person cannot be forced to leave a house which they own either in their own name or jointly.
Emergency accommodation in refuges is available to a woman and children who leave the home because of violence.
If you separate, financial assistance (e.g. single parent payment, special benefit, newstart allowance) may be available through Centrelink.
If you are concerned about your partner running up debts or spending savings after separation, you can take steps to end or limit credit liability and to freeze bank accounts.
It is possible to apply to court for an order to preserve money in bank accounts or other property at risk of being disposed of. You should get legal advice about this, because the order is only made in special circumstances.
If you leave, this does not mean you lose your rights to property. In some circumstances, a court will order that only one partner can live in the home. This is called a 'sole use and occupation order'. This is a temporary order until a property settlement or other agreement is reached.
There are time limits that apply for a property settlement. If you were married and you want the court to make an order you must apply for a property settlement and/or spousal maintenance within 12 months of your divorce being made final.
If you were not married, your local state or territory laws cover this and there may still be time limits. The law is changing in this area. Get legal advice.
Separation may affect your rights and responsibilities, which can include parenting arrangements for children, child support, property, spousal maintenance, superannuation, joint bank accounts, joint debts and your will (or lack of a will). Get legal advice.
Where can separating families get help?
Legal Aid Queensland can give you advice about your legal options and can refer you to other support services that can help. Legal Aid Queensland has dispute resolution services that can help you and your ex-partner reach agreement on parenting and property matters as well as child maintenance.
A Family Relationship Centre can also help you work out your options if you are a separating or separated parent. You can get advice on parenting after separation. The centre staff will try to help you focus on what your children need and to think about what arrangements you need to make, including child support.
If there are children's matters involved, property division may also be able to be dealt with as part of the family dispute resolution process. Where the matter involves property alone, the centre can refer clients to other family dispute resolution services who specialise in property as well as other matters. A Family Relationship Centre may provide family counselling or refer you to these services or to a personal counsellor.
Information and services are also available to assist your relationship with your ex-partner (including help with reconciliation of the relationship). You can also be transferred to a parenting advisor who can assist you with parenting arrangements after separation.
You may not have to try family dispute resolution if there is violence or child abuse. You may need to go to court.
Acknowledgement - Prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.