The separation process in Queensland

Meet Stephen

Stephen is fictional, and his situation is common.

He has lived with his partner Amanda for seven years and has decided the relationship is over. They own a house together with a mortgage in both names. Both work and both have separate bank accounts. They have one daughter.

Stephen does not want litigation. He wants the property divided fairly and he wants his daughter to have a real relationship with both parents.

Step one: telling your partner

Separation happens when one person forms the intention to end the relationship and communicates it. Amanda does not have to agree and does not have to consent.

Stephen could leave a note and move out. He could sit down and have the conversation. Either works legally.

What matters is what happens next. However justified the anger, throwing belongings onto the lawn produces a domestic violence application, not a faster settlement. Conduct in the first fortnight after separation shows up in affidavits for years.

Stephen has the conversation. They agree he will move out for now, and that their daughter will spend at least three nights a week in his care while things are sorted out.

Note the date. The date of separation matters for the 12 month period before a divorce application, and for de facto couples it starts the two year limitation period for property and maintenance applications.

Step two: dealing with property

Property means almost anything of value: cash, investments, superannuation, vehicles, business interests, debts and of course the house.

Since 10 June 2025 the framework a court applies is set out in section 79(5) of the Family Law Act 1975 (Cth). The exercise identifies the property and liabilities, considers each party’s contributions, considers the current and future circumstances of each party, and asks whether the orders proposed are just and equitable. The provisions now also expressly require the effect of family violence on contributions and on future circumstances to be taken into account.

Stephen has three ways to finalise this.

1. An informal agreement. A handshake, or an exchange of emails. This is a poor idea. Items get missed, superannuation is almost always forgotten, and there is no protection against a later claim. Avoid it.
2. A binding financial agreement. A formal contract under the Act dealing comprehensively with the property. No court involvement is needed, but both parties must have independent legal advice, and it must comply with the Act to be binding. See our article on binding financial agreements.
3. Consent orders. An application to the court asking it to make orders in the terms the parties have agreed. The court considers whether the arrangement is just and equitable before making them. This produces the strongest and most easily enforced outcome, and it does not require anyone to attend court.

Where the parties do not agree, they must generally make a genuine effort to resolve the dispute first, including through family dispute resolution, arbitration or conciliation, before proceeding to court in most cases.

Stephen chooses a binding financial agreement, because Amanda has been clear that she does not want anything filed with a court. He accepts that enforcement is more complicated if she later breaches it.

Step three: arrangements for their daughter

This is where the law has changed most, and where old articles will mislead you.

Until 6 May 2024 the Act contained a presumption of equal shared parental responsibility, which in turn triggered an obligation to consider equal or substantial and significant time. That presumption was removed by the Family Law Amendment Act 2023 (Cth).

There is now no presumption. Parental responsibility is allocated by reference to the best interests of the child. Where the court makes an order for joint decision making on major long-term issues, the parents are required to consult each other, but the starting point is no longer equal shared responsibility.

The best interests factors were also rewritten. The court considers what arrangements promote the safety of the child and their carers, the child’s views, the child’s developmental, psychological, emotional and cultural needs, the capacity of each person to provide for those needs, the benefit of a relationship with both parents where it is safe, and anything else relevant. For Aboriginal and Torres Strait Islander children there is an additional factor about connection to culture.

So the question Stephen and Amanda need to ask about every arrangement is not what is fair to us. It is what is in our daughter’s best interests, with safety first. Their own preferences sit well down the list.

Having agreed, they can record the arrangements in a parenting plan, which is written, signed and dated but not enforceable, or in consent orders, which are.

Stephen was comfortable with an agreement on property. He was not comfortable without a court order on parenting, so consent orders are filed. See our page on parenting arrangements.

When it does not go this smoothly

Plenty of separations do not.

Sometimes nothing can be agreed. Sometimes negotiations collapse over one issue: a pet, an heirloom, a school, a business. At that point someone has to file, and the process becomes slower and more expensive.

Sometimes an agreement is reached and then not honoured, or an asset that was hidden comes to light. Then the options are to accept it, renegotiate, or ask the court to intervene. Non-disclosure is a strong ground for setting aside both agreements and consent orders.

There is no single right response. In our experience the people who come out of separation faster and in better shape are the ones who resolve as much as possible without a hearing, even where they have to accept an imperfect outcome to do it.

Where Stephen ended up

1. He told Amanda he wanted to separate, and recorded the date.
2. He documented a binding financial agreement dealing with the house, the mortgage, cash, superannuation and the rest of the property.
3. He agreed parenting arrangements focused on his daughter’s best interests, and had them made into consent orders so they are enforceable.

There is no divorce in this story, because Stephen and Amanda were not married. Divorce is a separate application available after 12 months of separation, and it does not deal with property or children.

See our pages on separation and divorce.