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Separation

Separation marks the end of an intimate partner relationship. This page explains what the law says about separation, what evidence can help protect your position, and the key time limits you should know about.

What does “separation” mean?

“Separation” isn’t fully defined in the Family Law Act 1975 however Section 49 of the Act does confirm two important things: you can be separated even while still living under the same roof, and one partner alone can bring the relationship to an end, you don’t both need to agree. Court decisions have added detail to this. Broadly, the Court looks for three things:

One or both partners intend to end the relationship.
The partners act on that intention, or act as though the relationship has ended.
Where only one partner considers the relationship over, they communicate that clearly and unmistakably to the other partner.

Separating under the same roof

You don’t have to move out to be separated. Separated couples can remain living in the same home and still be legally separated, but the less clear-cut the physical separation, the more evidence you may need to show that the relationship has genuinely ended.

This matters because disagreements about the date of separation are common when partners continue to share a home, and that date can affect both your eligibility to apply for divorce and how your property is divided.

Confirming your separation date

We recommend that, as soon as it’s safe to do so, you confirm the end of the relationship to your ex-partner in writing. Email is best, since it records the date and time it was sent. Keep this record- you may need it later for your divorce application or during property settlement negotiations.

If you’re separated under one roof, it’s also worth taking these steps:

Sleep in separate rooms and note the date you started doing so.
Tell family and friends that you’ve separated.
Stop socialising together as a couple.
Reduce the household tasks and services you do for your ex-partner.
Separate your finances where you can.
Keep records of what you contribute, financially and otherwise, after separation.

How separation affects property settlement

The date you separate, and what happens afterwards, matters for property settlement whether you were married or in a de facto relationship. The Court looks closely at what each person contributes after separation, and assets that come into existence after that date may be treated differently to those built up during the relationship. Where those assets are significant, this can materially affect your settlement.

Since 10 June 2025, the Family Law Amendment Act 2024 has also required courts to specifically consider the economic effect of family violence, including financial and economic abuse when weighing contributions and dividing property. If family violence has affected your finances during or after your relationship, the Court must now take that into account.

Having clear, contemporaneous evidence of your separation date reduces the risk of disputes about post-separation contributions.

Time limits you need to know

There are strict time limits for starting property settlement or spousal maintenance proceedings after separation:

Married couples: 12 months from the date your divorce order comes into effect.
De facto couples: 2 years from the date of separation.

Missing these deadlines doesn’t necessarily shut the door. The Court can grant leave to apply out of time, but only if you can show that you, or a child of the relationship, would suffer hardship if the application weren’t allowed. The Court also weighs the reasons for the delay, the merits of your case, likely legal costs, and any prejudice to the other party. This kind of application is usually avoidable, and almost always more costly and stressful than acting in time.

Before filing with the Court, you’ll also need to meet the pre-action procedures in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 including, taking genuine steps to resolve the dispute, such as exchanging written settlement proposals and, in most cases, attending mediation.

Thinking about divorce?

To apply for divorce, you and your partner need to have been separated for at least 12 months, including any period spent separated under one roof. Short periods of reconciliation (up to three months in total) won’t necessarily reset this clock.

A note on safety

If it isn’t safe for you to remain in your home, to tell your partner that you’ve separated, or to take any of the steps above, your safety comes first and the legal and evidentiary steps can wait.

If you are in immediate danger, please contact 000.

Support is available through 1800RESPECT (1800 737 732), who can provide confidential family violence counselling and support. Talk to us about how to protect your position safely.

How we can help

At Empower Family Law & Mediation, we can advise you on every aspect of separation, helping you properly document your separation date, giving you practical steps for the weeks ahead, and working with you to explore mediation and settlement options well before any statutory deadline applies.

Please call us on (03) 7020 6542 to discuss your situation and how we can help your family.

Speak with us

Your first 30-minute consultation is free. Call (03) 7020 6542 or contact our team to discuss your circumstances and next steps.

Phone: (03) 7020 6542

Email: info@empowerfamilylaw.com.au

Let us be your voice in troubled times.

More Services

Binding Financial Agreements (including Prenuptial Agreements)› Child Relocation› Child Support› Consent Orders› De Facto Relationships› Divorce› Family Mediation› Family Violence and Intervention Orders› Grandparents and Other Carers› Parenting and Child Custody› Property Settlement› Spousal Maintenance› Superannuation› Urgent Family Law Issues›

What the Court expects you to do before filing anything

The Court expects people involved in family law disputes to make every effort to resolve them before starting litigation, where it is safe to do so. That expectation is not just encouragement — it shapes how a case is treated if it does reach court, and it continues to apply once proceedings are on foot.

In parenting matters it goes further. Family dispute resolution is mandatory before a parenting application can be filed, unless an exemption is granted. Exemptions exist for circumstances including family violence and urgency, but they have to be established, not assumed.

If it is safe to do so, reaching your own agreement will usually cost less, take less time, and leave a better working relationship — which matters a great deal where there are children.

An informal agreement is not the end of the matter

Many separating couples reach a workable understanding between themselves and stop there. The risk is that an informal agreement binds nobody. Either of you can depart from it, and neither of you can enforce it.

There are two ways to document a financial agreement under the Family Law Act 1975:

Consent orders — proposed orders you both agree on and ask the Court to make. They can be obtained without attending court, but they are orders of the Court and are legally binding. Breaching one has consequences, and once final orders are made they can be changed only in limited circumstances.
A Financial Agreement — a contract under the Act, which requires each of you to obtain independent legal advice from an Australian lawyer before signing.

For children, the equivalent choice is between a parenting plan, which is not legally enforceable, and parenting orders, which are.

Our consent orders and binding financial agreements pages explain how each route works.

Start gathering your financial picture early

Whichever path you take, you will need an accurate picture of what you both own and owe. Where consent orders are used, each party must set out their financial circumstances and sign a statement that it is true and correct.

It is worth verifying rather than assuming. Exchanging taxation returns, payslips, bank statements and superannuation statements early tends to shorten the whole process, because negotiations built on a contested set of numbers rarely settle. If you suspect the picture is incomplete, say so early — there are formal tools for addressing it, and they work better before positions have hardened.

Practical steps in the first weeks usually include noting the date of separation and how it was communicated, taking copies of financial records you have lawful access to, reviewing joint accounts and redraw facilities, and checking who is liable for which debts.

Separation is not divorce, and neither finalises your finances

These are three separate processes, and they run on different clocks:

Separation is a question of fact — the point at which the relationship ended and that was communicated.
Divorce ends the marriage. It requires 12 months and one day of separation, and deals with nothing else.
Property, maintenance and parenting are resolved separately, by agreement or by court order.

Divorce also starts a clock: once it is final, you have 12 months to apply for property or maintenance orders. For de facto couples, the limit is two years from separation. Out of time, you need the Court's permission, and it is not always given.

The Court information on this page reflects the published guidance of the Federal Circuit and Family Court of Australia on family dispute resolution and formalising an agreement, as at 26 October 2026. It is general information only, not legal advice, and does not replace advice about your own circumstances.

What is the difference between separation and divorce?

Separation is a question of fact: the point at which the relationship ended and at least one person communicated that to the other in some way. It requires no paperwork and no court involvement. Divorce is a legal process that formally ends a marriage, and it requires you to have been separated for at least 12 months and one day. Neither resolves your property, your finances or the arrangements for your children, which are dealt with separately by agreement or by court orders. You can resolve property and parenting without ever applying for a divorce, and in many cases it is better to deal with the property first, because the divorce starts a 12-month clock for property applications.

Why does the date of separation matter?

It starts several clocks and shapes the asset pool. For a de facto couple, an application for property orders must generally be made within two years of the breakdown of the relationship, and for a married couple, 12 months of separation is required before a divorce can be filed. The date also marks the start of the period in which disposals of property must be disclosed, and it is the point from which post-separation contributions are assessed. Because the date can later be contested, particularly in de facto matters where there is no marriage certificate to anchor it, record when the relationship ended and how it was communicated, and keep any messages or correspondence evidencing it.

What does the Court expect us to do before starting a case?

To make every effort to resolve the dispute before commencing litigation, where it is safe to do so. That expectation is not merely encouragement: it shapes how a case is treated if it does reach court, and it continues to apply once proceedings are on foot. In parenting matters it goes further, because family dispute resolution is mandatory before a parenting application can be filed unless an exemption is granted, and exemptions for circumstances such as family violence or urgency must be established rather than assumed. There can be costs consequences for failing to comply with an order to attend dispute resolution, or for attending without genuinely engaging in an attempt to resolve the issues.

Is an informal agreement enough?

No. An informal agreement binds nobody: either of you can depart from it, and neither of you can enforce it, which is precisely the problem that tends to emerge a year or two later when circumstances change. Financial arrangements are documented either by consent orders, which are orders of the Court and are enforceable, or by a financial agreement, which is a contract under the Act requiring each party to obtain independent legal advice before signing. For children, the equivalent choice is between a parenting plan, which is not legally enforceable, and parenting orders, which are. Documenting the outcome properly is usually the cheapest part of the whole exercise and the part people most often skip.

What should I do about money in the first few weeks?

Start gathering an accurate picture, because you will need one whichever path you take. Taxation returns and notices of assessment, payslips or business and trust financial statements, bank and credit card statements including joint accounts, superannuation member statements for every fund, and documents for property, loans and other liabilities are all needed eventually, since both parties must set out their financial circumstances and verify them. Review joint accounts and redraw facilities, and check who is liable for which debts. If you suspect the picture is incomplete, raise it early rather than late: there are formal tools for obtaining financial information, and they work better before positions have hardened.

What should I avoid doing?

Do not move, hide or dispose of assets. You must disclose any disposal of property, by sale, transfer, assignment or gift, made in the year immediately before separation or at any time since, where it may affect, defeat or deplete a claim, and that look-back period reaches behind the separation date. Before the first court date every party must file a written undertaking about disclosure, acknowledging that breach may be contempt of court. Non-disclosure can result in the material being excluded as evidence, the case being stayed or dismissed in whole or part, costs being ordered against you, or a fine or imprisonment. Beyond finances, keep children out of adult disputes and take advice before signing anything.