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Separation 

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‘Life after separation - putting the pieces back together’ DVD - This presentation explores your options and the services available as you face this difficult time. It offers information about the options available to you depending on your circumstances and, by dropping in on two families, will help you get a clearer idea of how the system works in ‘real life’ scenarios.

What is separation?

Separation is when you stop living together as a couple, even if you are still living in the same house. You do not need to get permission or your partner's agreement, but they need to know that you think the relationship is over.

One person may move out of the home, or you can both stay but live separate lives. Staying in the house together is known as ‘separation under the one roof’.

If you are new to Australia, or are worried about residency, get legal help.

Can we live separately ‘under the one roof’?

You can be living in the same house, as long as you live separate lives. You may have to prove this to government organisations such as Centrelink. To decide if you separated ‘under the one roof’, factors considered are:

  • you sleep together
  • you have sex or sexual activity
  • you share meals and domestic duties (in a different way to when you were married)
  • you share money and bank accounts
  • your friends and family think of you as separated.

How do I get separated?

To get separated you do not have to apply to a court or government organisation, or fill in any forms. You will not get a certificate saying you are separated. You will need to:

  • Tell organisations such as Centrelink, the Child Support Agency and Medicare that you are separated.
  • Make proper arrangements for any children involved, and tell your family and friends.
  • Sort out your financial affairs — work out how debts and loans will be paid, whether you have joint bank accounts, what your superannuation or insurance entitlements are and change your will. Tell your banks, superannuation and insurance companies of your separation too.

This will help if you need to prove you are separated. Also get legal help. See Dividing your property.

Does one of us have to leave the family home?

It is your decision if you want to leave, or your partner may have left you. If your partner has used violence or threats, you may feel you have no choice. If you are in this situation you can get help.

If you have experienced domestic violence, it is possible to ask the court for a protection order, which may require the other person to leave the home.

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.

You should get legal advice about this, because these order are only made in special circumstances.

If you have a domestic violence protection order against you and it says you must not be at your home, then you must leave. You should obey the order and get legal and other help. You should get legal advice. See Family and domestic violence.

Do I lose my rights if I leave?

If you do leave the family home, you will not lose your rights to the house or your things. You may also be able to return at a later time. It is best to think about your and your children’s safety first, and also get legal help. See Protecting your property.

What should I take if I leave?

You can legally take anything you own yourself, or that you own with another person. You should also take personal documents, such as:

  • bank and cheque books
  • financial statements
  • tax returns
  • passports
  • personal identification
  • marriage certificate
  • items of sentimental value, and
  • things you and your children may need, if they are going with you.

Can I take the children with me?

Yes, but remember the main concern of the law is to make sure that the best interests of children are met. This includes children having the benefit of both parents’ meaningful involvement in their lives and that they are protected from physical or psychological harm.

If the move will make it more difficult for the other parent to see the children, you should try to get the other parent’s agreement first. If possible, get legal advice, even if you have your former partner's agreement. See Location and recovery of children.

If you feel you or the children are at risk of being hurt, get help quickly. In an emergency call the police on 000. A domestic violence crisis service can also help you. Get legal help as soon as possible.

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Do I need legal advice?

You may need legal advice if:

  • you have been subject to domestic violence and are considering applying for a domestic violence protection order, which may force the other person to leave the home
  • you believe your ex-partner may run up debts or spend savings after separation and you want to prevent money or property being taken or disposed of
  • you need to know how separation will affect parenting arrangements, child support, property, spousal maintenance, superannuation, joint bank accounts, joint debts and your will (or lack of a will)
  • you have prior court orders regarding superannuation from a previous relationship and need to change your nominated beneficiary
  • are considering applying to court for a sole use and occupation order because you want to force the other person to leave the home.
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Where can I get legal advice

Legal Aid Queensland may provide legal advice on issues relating to separation.

The following organisations may also be able to give legal advice on your matter.

Community legal centres give legal advice on a range of topics. Contact them to see if they can help with your matter.

Queensland Law Society can refer you to a specialist private solicitor for advice or representation.

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Who else can help?

These organisations may also be able to assist with your matter. They do not provide legal advice.

DV Connect provide counselling, information, referral and assistance including refuge and shelter placement and crisis intervention to people affected by domestic violence. They also facilitate the Pets in Crisis project to arrange foster care for pets while people affected by domestic violence are in temporary accommodation.

Family Relationship Advice Line provides information about the family law system in Australia.

Family Relationship Centres provide information, referrals, dispute resolution and advice on parenting after separation.

Family Law Courts deal with family law cases. Court forms and information on family court processes are accessible from their website.

Women's Safety After Separation (WSAS) is an online resource for women facing separation, particularly where there is violence and abuse. Information includes online safety, emergency contacts, the legal system, recovery and survival and more.

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Disclaimer - Copyright © 1997 Legal Aid Queensland. This content is provided as an information source only and is not legal advice. If you have a legal problem, you should seek legal advice from a lawyer. Legal Aid Queensland believes the information is accurate as at 25 November 2011 but accepts no responsibility for any errors or omissions and denies all liability for any expenses, losses, damages and costs you might incur due to the information being inaccurate or incomplete in any way.



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Separation