This time of year is a common one for couples to initiate separation and divorce. Following the holiday
season, with its intense family gatherings, increased financial pressures, and prolonged proximity, there
can be significant strain on relationships already facing challenges. For many Australian couples, the
heightened stress of this period often leads to the decision to separate once the celebrations conclude.
If 2026 has brought your relationship to an end, understanding the initial, critical steps of separation under Australian family law is essential for a smoother transition for all involved.
How does separation work?
Under Australian law, separation does not require a formal document or the agreement of both parties.
Separation is legally recognised the moment one person decides the relationship is over and clearly
communicates this decision to the other party. This decision must be accompanied by actions that
demonstrate the breakdown (e.g., ceasing shared activities, meals, or intimate relations).
It is common for couples to separate while still living in the same home, often due to financial necessity.
To prove legal separation in this situation, you must show that the fundamental nature of the relationship
has changed (e.g., sleeping separately, minimal shared social life, no shared domestic duties).
The date of separation is vital as it begins the 12-month period of separation required before you can
apply for a formal divorce.
So, once you’ve decided to separate, what are the next steps?
Priority 1: Arrangements for children
When a relationship with children under 18 breaks down, the primary focus of Australian family law is
the best interests of the child.
Both parents generally retain equal shared parental responsibility, meaning they must consult and make
joint decisions about major long-term issues for the child (e.g., schooling, health).
The law encourages children to have a meaningful relationship with both parents, provided it is in their
best interests. However, there is no automatic rule of "50/50" time; arrangements are determined by
the child's needs and the practical circumstances of the family.
Except in urgent circumstances, the court requires parents to make a genuine effort to resolve parenting
arrangements through Family Dispute Resolution (FDR), such as mediation, before applying to the
Federal Circuit and Family Court of Australia (FCFCOA).
If you and your former partner agree on parenting arrangements, you can formalise them in two ways:
| Type of Agreement | Legal Status | Purpose |
| Parenting Plan | Not legally enforceable. | A flexible, written document detailing arrangements. |
| Consent Orders | Legally binding and enforceable. | An agreement approved and made into court orders by the FCFCOA. Recommended for legal certainty. |
Priority 2: Financial and property matters
Separation requires a fair division of the property pool (assets, liabilities, and superannuation)
accumulated during the relationship. This is governed by a flexible, four-step process that applies
whether you were married or in a de facto relationship.
The Four-Step "Just and Equitable" Test:
- Identify and Value: Determine the net worth of the property pool. This includes all assets and
liabilities, regardless of whose name they are in or when they were acquired. - Assess Contributions: Evaluate the financial (e.g., income, inheritances, initial contributions) and
non-financial (e.g., parenting, homemaking, renovations) contributions of each party throughout
the relationship. - Future Needs: Consider the future needs of each party, adjusting the percentage split based on
factors like age, health, disparity in income-earning capacity, and who will have the primary care
of the children. - Just and Equitable: Ensure the final percentage division is fair and equitable in the
circumstances of the specific relationship.
To support this process, it’s important to start collecting detailed statements for all bank accounts,
superannuation, debts, property valuations, and tax returns.
Open a new bank account in your sole name, redirecting your income there. Take steps to secure
personal records, passwords, and change joint arrangements where appropriate.
Property matters must be finalised by applying for Consent Orders or filing an application with the court
within 12 months of your divorce becoming final (for married couples) or 2 years from the date of
separation (for de facto couples).
Priority 3: Finalising the divorce
The process of divorce legally terminates a marriage and is separate from property and parenting
matters.
Australian law does not require you to prove "fault" for the breakdown. The only ground for divorce is
the irretrievable breakdown of the marriage, demonstrated by a continuous period of separation for 12
months and one day.
Once the separation period is complete, you can apply for a divorce order to the FCFCOA. If there are children under 18, the court must be satisfied that proper arrangements have been made for their care,
welfare, and development before granting the divorce.
How to get started
Separation can be overwhelming. Seeking professional help is crucial for both legal clarity and emotional
support.
Consult with the family law specialists at Owen Hodge Lawyers immediately to receive tailored advice on your unique circumstances, particularly regarding the formalisation of parenting and property arrangements.
Utilise resources like Family Relationship Centres, which provide support services, mediation, and
counselling to help families navigate the emotional and practical transition.
