Separation

Separation

You’re separated when you stop living together as a couple. One person may move out of the home, or you can be still living at home together but have separate lives—this is called ‘separation under the one roof.’

You may have to prove these living arrangements to agencies such as Centrelink. When deciding if you are separated under the one roof, they will consider whether:

• 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
• family and friends think of you as separated.

No single factor is conclusive.

How do we separate?

There are no legal processes to separate. You don’t have to apply to a court, to a government organisation, or fill in any forms. You won’t get a certificate saying you are separated, but you may need to:

• tell organisations such as Centrelink, the Child Support Agency and Medicare
• make proper arrangements for any children involved
• 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. You’ll need to tell your bank/s, and superannuation and insurance companies that you’ve separated.

Taking these actions will help prove that you’re separated. You may need legal advice.

For more information on property settlements when a relationship ends see dividing your property.

Leaving home

In most cases, you and your ex-partner can decide who will leave the home. If you can’t agree then you can apply to the court for a sole use and occupation order forcing one person to leave. This order is only made in special circumstances. Get legal advice.

If you’ve experienced domestic violence you can ask the court for a domestic violence protection order forcing the other person to leave the home — get legal advice.

A person can’t be forced to leave a house they own in their own name or jointly unless the court has made a sole use and occupation order or a domestic violence protection order.

If there is a domestic violence protection order against you and it says you must not be at your home, then you have to leave. You should obey the order and get legal advice. For more information see Domestic and family violence.

If you have to leave you won’t lose your rights to the house or your possessions. You may be able to return at a later time. You should think about your safety and your children’s safety first — get legal advice. For more information see protecting your property.

When leaving your home you can legally take anything you own individually or that you own with another person. You should take personal documents, such as:

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

You can take your children with you, but you should make sure you consider what’s in their best interests. This includes giving them the benefit of both parents’ meaningful involvement in their lives and making sure they are protected from physical or psychological harm.

If moving away from the area makes it harder for the other parent to see their children, you should try and get their agreement first — get legal advice. For more information see Moving or traveling with children.

Do I need legal advice?

You may need legal advice if you:

• have experienced domestic violence and are considering applying for a domestic violence protection order forcing the other person to leave the home
• believe your ex-partner may run up debts or spend savings after separation and you want to prevent money being spent or property being taken
• 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)
• have prior court orders about 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.

Get legal advice

We may give legal advice about separating.

The following organisations may be able to give legal advice:

Community legal centres give legal advice on a range of topics. Contact them to find out if they can help.

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

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

Who else can help?

These organisations may be able to help. They don’t provide legal advice.

DV Connect gives counselling, information, referral and help including refuge and shelter placement and crisis intervention to people affected by domestic violence. They also manage the Pets in crisis project arranging foster care for pets while people affected by domestic violence are in temporary accommodation.

Mensline - DV Connect provides information, counselling and referral on relationships, health, family and domestic violence.

Family Relationship Centres give 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 available online.

 

Last updated 31 January 2023

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If you have a general question for Legal Aid Queensland, please use the general question form or call 1300 65 11 88, Monday to Friday, 8.30am to 4.30pm.