Separation and what it starts

What separation actually requires

Three things: an intention to end the relationship, communication of that intention to the other person, and conduct consistent with it. Only one of you needs to form the intention. Separation does not require agreement, and your former partner cannot refuse it.

Section 49 of the Family Law Act makes that explicit. Separation can happen at the initiative of one party, and the fact that the other party did not want it makes no legal difference.

The evidence people rely on later is ordinary and unremarkable: a text message on the night, a change to living arrangements, telling family, splitting bank accounts, updating Centrelink, moving out of the bedroom. Write down the date now while you still remember which day it was.

Separated while still living together

Separation under one roof is recognised, and it is common, because two households cost more than one and nobody plans a break-up around the rental market. Section 49(2) allows the marriage to be treated as broken down even though the parties continued to live in the same residence.

The catch is proof. When you apply for divorce on a separation under one roof basis, the court will expect affidavit evidence explaining how the relationship changed. In practice that means an affidavit from you and a corroborating affidavit from an independent person, often a family member, friend, neighbour or your accountant.

What the affidavits usually cover

• Sleeping arrangements and when they changed.
• Whether you still shared meals, chores, shopping and laundry.
• Whether finances were separated, and when.
• Whether you still presented publicly as a couple, and who you told.
• Whether either of you continued to perform household services for the other.
• Why you continued living in the same house, which is usually cost or the children.

None of these on its own decides it. The court looks at the overall picture.

Getting back together, and the three month rule

People reconcile. Section 50 of the Family Law Act allows for it without resetting the whole 12 months. If you separate, resume living together on one occasion for a period of less than three months, and then separate again, the periods before and after can be added together to make up the 12 months. The time you spent back together does not count towards it.

The concession is limited. It covers a single resumption of cohabitation. Two or three attempts at reconciliation will generally restart the clock from the final separation. If you are considering trying again, that is a good reason to try, but be clear-eyed about the effect on the timing.

The first fortnight, in order

1. Write down the date of separation and the circumstances, while it is fresh.
2. Take a snapshot of the finances. Bank statements, superannuation balances, loan balances, credit cards, tax returns, business records. Take copies while you still have access. Do not access accounts you have no right to access.
3. Deal with redraw and joint credit. A joint loan with redraw available, or a joint credit card, is a live risk to both of you. Speak to the lender about requiring both signatures.
4. Do not move out over a weekend without advice if children are involved or you have concerns about the property. Moving out does not forfeit your interest in the house, but the arrangements that settle in the first month tend to become the status quo.
5. Review your will and your superannuation death benefit nomination. Separation does not revoke a will in Queensland. Divorce affects some gifts. Until you change them, your former partner may still be your beneficiary.
6. Update Centrelink and Services Australia, because separation affects family tax benefit and starts child support.
7. Get advice on time limits if you were in a de facto relationship, because you have two years and it goes quickly.

If you are frightened of your former partner, deal with safety before any of this. A protection order and a family law matter can run at the same time and they affect each other. See domestic violence and protection orders, and call 000 if you are in immediate danger.

What separation does not do

Separation does not end a marriage. Only a divorce order does that, and you cannot apply for 12 months.

Separation does not divide anything. Legal ownership stays where it is until a property settlement is documented in consent orders or a financial agreement.

Separation does not change parental responsibility. Both parents keep it unless a court orders otherwise.

Separation does not stop your former partner accruing an interest in assets you buy afterwards, and it does not stop debts you incur afterwards being taken into account. The asset pool is generally assessed at the date of the hearing or the agreement, not the date of separation, which surprises almost everybody.