WHAT DOES IT MEAN TO BE SEPARATED?
There are two main types of separation- physical separation and separation under the same roof.
This type of separation is more simple and straightforward. If you and your ex-partner have split, and one of you have moved into different accommodation and is living separately, this is usually quite clearly deemed as separation.
Jess and Jill have been married for 2 years. For the past 6 months, the couple have been fighting a lot. Two months ago, Jess announced to Jill that she is moving out, packed her bags and moved into her mother’s house. Since moving out, the couple have not spoken or seen each other. It is likely that they will been deemed as separated.
SEPARATION UNDER THE SAME ROOF
This type of separation is a little bit trickier. If for whatever reason you split up with your ex-partner but they continue to live under the same roof, this can still be deemed as separation. What separation under the same roof looks like is a bit different for every couple, but it essentially means that even though you live in the same home, you lead separate lives. What this could look like includes things like eating meals separately, socialising separately, sleeping in different beds, not sharing household chores and keeping finances separate.
Abby and Andrew have been married for 7 years. In recent times, Abby has been unhappy in the marriage and asked Andrew if he could move out. Andrew told Abby that he cannot afford to at the moment, because he is currently out of work. For the past month, Andrew has been sleeping in the spare room, doing his own cooking, buying his own household items from his own account and not spending time or socialising with Abby. This is very different to previously in their marriage. It is likely that Abby and Andrew have separated, even though they continue to live in the same house.
ARE THERE ANY IMPLICATION IN ME BEING PHYSICALLY SEPARATED OR SEPARATED UNDER THE SAME ROOF?
The only difference comes when you are looking to get divorced. You need to be separated for a minimum of 12 months before you apply for a divorce. If you have been separated under the same roof, you will need to provide an affidavit for evidence to support this. A separation lawyer can help you get more information about this and help you to prepare it.
DOES IT MATTER HOW LONG I’VE BEEN SEPARATED FOR BEFORE I START MAKING ARRANGEMENTS WITH MY ASSETS?
No, you can start making arrangements about your property division from the date you separate.
HOW ABOUT MY CHILDREN’S ARRANGEMENTS?
No, you can start making arrangements for co-parenting from the date you separate.
I’M INTERESTED IN GETTING A DIVORCE. DO I NEED TO BE SEPARATED FOR A CERTAIN AMOUNT OF TIME BEFORE APPLYING FOR DIVORCE?
This is the part that matters about how long you have been separated. In order to apply for divorce, you and your ex-partner must be separated for a minimum of 12 months.
IS THERE A TIME LIMIT IN WHICH I NEED TO HAVE FULLY SEPARATED MY ASSETS FROM MY EX-PARTNER?
Married couples- if you were married, there is a time limit of 12 months from the date of divorce in which to apply for property and financial orders. De Facto couples- if you and your ex- partner were de facto, you have two years from the date of separation in which to apply for property and financial orders.
WHEN IS THE BEST TIME TO SEE A SEPARATION LAWYER?
A separation lawyer can be extremely helpful through the whole process of splitting up. At an initial stage, one of our lawyers will be able to advise you on questions such as:
- How do I divide my superannuation interests?
- Who gets to live in the family home after separation?
- If my child gets sick, who makes the decisions regarding medical care?
- What do I have to do if I want to take my child overseas?
- What are my options when it comes to child support?
- How much time should my kids be spending with me and my partner?
- Do we need to sell the family home or can one of us buy the other out?
- Who pays the mortgage?
- If my partner and I cannot reach an agreement, how do we resolve our family law issues?
- How much am I entitled to from our asset pool?
ME AND THE OTHER PARTY HAVE SEPARATED AND HAVE COME TO AN AGREEMENT ABOUT THE ASSETS WE OWN TOGETHER. WHAT NOW?
If you reach an agreement with your ex-partner, a family lawyer can help you prepare that agreement so it is enforceable and also make sure that it covers all the issues that you and your ex-partner may not have considered, such as :
- How the funds in joint accounts is to be divided
- If one person is buying the other person out, what happens if they cannot obtain finance approval?
- If there are personal loans and credit card debts, who is responsible for the repayments?
- How to effectively deal with business interests, such as organising a transfer of shares, organising the resignation by one person as director and employee, whether a family trust needs to be restructured, and whether a fair market value has been attributed to the business.
Once everything has been thoroughly covered in your agreement, our team of specialist separation lawyers can help you complete the legal paperwork and drafter the necessary terms to make sure the agreement is accurate and protects your interests.
ME AND MY EX-PARTNER HAVE SEPARATED AND HAVE COME TO AN AGREEMENT ABOUT OUR CHILDREN, WHAT NOW?
When it comes to parenting arrangements, a separation lawyer can help you consider
- Who the child lives with
- Who makes the decisions in relation to the children’s schooling, health and medication
- Who the children live with and who they spend holidays with
- Travelling arrangements
Our team of specialist lawyers can then help you to make this into an enforceable agreement, providing the whole family with a sense of certainty moving forward.
Not Sure What To Do Next?Free Discussion
The family law team at MKI Legal can assist you with any questions about your family law matter, separation, splitting your assets or your children. We can help you make the right decision on what to do next.