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FamilyFebruary 17, 2015

What to do after family separation

Have you, a friend or relative just separated? If so, the information below could help.

What is meant by separation? Separation is the ending of a marriage or de facto relationship. De facto relationships include same sex couples.

Separation is simply a fact, which is established by one or both parties forming an intention to end the relationship and, where necessary, communicating that intention to the other party. There are no formal requirements under Australian family law to prove separation, like registration or a separation declaration.

In order to bring an Application for a divorce, the parties must have been separated for at least 12 months.

Although it is not a legal requirement, it is a good idea to confirm separation in writing, even by text message or e-mail. Then there can be no argument later about the precise date of separation.

Parties may continue to live together yet still be “separated under the one roof”. Whether this is the case will be determined by the facts of ongoing arrangements – such things as sleeping together, sharing domestic tasks and finances and the way you represent yourselves as a couple in public will indicate whether or not you are really separated in the eyes of the family law.

Once you are separated you can apply to have a property distribution under the family law – you do not have to wait for 12 months for this to occur. You can do this by agreement through Consent Orders or, where circumstances require, make an application to the Court for a determination or to protect property where there is a danger it might be compromised.

What about de facto relationships?

In Western Australia de facto relationships are covered by the Family Court Act (1997) rather than the Family Law Act (1975), which is the case elsewhere in Australia.

The Family Court Act covers situations in which a de facto relationship will be found to exist and, unsurprisingly, having children together, sharing finances and your domestic arrangements will all be significant indicators of a de facto relationship. There is also a requirement that the arrangement has persisted for two years for it to be deemed a legal de facto relationship. If your particular de facto relationship has lasted for less than two years, the Family Court may not have jurisdiction to determine a property settlement between you and your separated partner. However, there may be alternate remedies available or another basis other than the two year requirement to show that a de facto relationship existed. The law can be complex and legal advice may be useful to help you determine your legal status (and the consequences of that status).

If a de facto relationship existed you must bring an Application in the Family Court within 12 months of the end of your relationship unless you can obtain leave of the Court to do so out of time. This is one of the reasons why it might be important to have evidence of the date of separation.

Ten things to consider if you have just separated:

  • Open separate bank accounts and advise your bank or financial institution to stop joint funds being removed or liabilities increased on any joint account.
  • If you have a Power of Attorney, ensure it is revoked, and have a new one drafted.
  • Consider whether your nominated death beneficiary for your superannuation entitlements is appropriate.
  • Photocopy or scan all of your and your ex’s financial documents and put them in a secure location (this should not be your home or motor vehicle).
  • Look at your Will and consider if it is still what is appropriate and, if you do not have a Will, have one drafted.
  • If you have children, contact the Child Support Agency and find out how much is to be paid or is payable.
  • Do title searches on your properties. If your home is not in your name or is in joint names ensure you place caveats over the properties. If your property is held as a joint tenant, ensure you sever the joint tenancy.
  • If there has been family violence in the relationship you may need to seek a Restraining Order.
  • Start a diary that keeps track of time your partner has with the children and any adverse behaviour he/she displays.
  • Seek advice from an experienced family lawyer.

To find out more, or if someone you know needs help, Please call us on (08) 9335 9877 or complete the form below to request an Introductory Consultation.


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