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Separation and divorce

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

How do I separate?

To separate 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 Department of Human Services (Child Support 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, what to do about any joint bank accounts, what your superannuation or insurance entitlements are and change your will.

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 maybe your partner has left you. If your partner has used violence or threats, you can get help to apply for a domestic violence order at a magistrates court. You can ask for an order that stops your former partner from living in the family home, or coming anywhere you live or work. Orders can also protect children.

If you have a domestic violence order against you and it says you must not be at your home, then you must leave. You must do what the order says. Get legal and other help. See ‘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.

What should I take if I leave?

If you do need to leave your home urgently, it is best to take all your legal and financial papers with you, such as:

  • birth and other certificates
  • wills
  • passports
  • visas
  • bank and cheque books
  • superannuation, tax and other financial papers
  • personal things you are worried about leaving behind
  • things you may need for yourself and your children if they are going with you.

If you apply for a domestic violence order, you can ask for the order to include that your personal property be returned to you.

Can I take the children with me?

Yes, but remember the law says children have a right to a relationship with each parent as long as they are safe and it is in their best interests. If the move will make it more difficult for the other parent to see the children, you need to try to get the other parent’s agreement first. If possible, get legal advice, even if you have your former partner’s agreement.

If you feel you or the children are at risk of being hurt, get help quickly. Call the police on 000. A domestic violence crisis service can also help you. Get legal help as soon as possible. See ‘Where to go for help’.

What is divorce?

Divorce is the official ending of your marriage. Your partner does not have to agree, and the law does not look at whose ‘fault’ it is. Defacto couples do not have to get divorced as they were never married. Couples in a registered relationship need to apply to the Registry of Births, Deaths and Marriages to end their relationship.

Do I have to get a divorce?

No. However, if you or your former partner wants to remarry, you must be divorced.

You can make arrangements for children and property without being divorced. If possible try to make these arrangements soon after separation.

Tell organisations like Centrelink, banks, superannuation and insurance companies.

If you stay married this affects your rights and obligations with finances and your will. See ‘How do I separate?’.

Get legal and financial help, particularly before signing an agreement. If you do get a divorce, you must apply to the court for a property settlement within 12 months. Get legal advice. See ‘Dividing your property’.

How do I get a divorce?

You can apply for a divorce at the family law courts. You or your partner must be an Australian citizen or long term resident.

You can still apply for a divorce if you were married overseas, or if you do not know where your partner is, as long as you live in Australia. If you are concerned your marriage might not be legal get legal help.

Contact the court for more information and a divorce kit, which has the forms you need. There is a fee for applying for a divorce.

Do I need a lawyer to get a divorce?

Most people apply without using a lawyer. You can decide if you want a lawyer to help you. You may need legal help to sort out arrangements for children or property.

When can I get a divorce?

Your marriage must have broken down, with no chance of you getting back together. You must be separated from your partner for at least 12 months and one day. If you were married for less than two years extra conditions apply.

You can be living in the same house, as long as you live separate lives. You may have to prove this.

What if there are children of the marriage?

The court will want to make sure proper arrangements have been made for the children, before allowing the divorce. See ‘Children’.

What happens if we get back together?

You can become a couple again for up to three months in one period without affecting the 12-month separation period.

How long does it take?

It will usually take several months for the divorce to become final. If your situation is complicated, it may take longer.

Last updated 18 November 2015

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