You are separated for the purposes of Family Law when:
- One party has formed a view that the relationship is over;
- They have informed the other party of that view; and
- They have acted on their decision by doing such things as:
- Moving out or moving into another bedroom
- Telling friends and family of the separation
- Not going out together socially
- Living separate lives
This means you do not need to sign anything, or do anything “official” to be separated. If you are married, you can apply for a divorce once you have been separated for 12 months.
How long after separation can a divorce application be made?
As soon as you have been separated for 12 months. You can apply by yourself or jointly with your spouse.
Are there any rules about how the children should be cared for after separation?
There are no fixed rules about how children should be cared for after separation. Parents can put in place the arrangements they agree are appropriate for their children. If the matter is before the Court the question to be decided is what arrangements would be in the child’s best interests. There are a number of factors used to determine what that means. There are some general guidelines which are widely accepted:
- In most cases the broad care arrangements prior to separation should continue after separation unless this would bring harm to the children.
- Children have a right to properly know and relate to their parents and other important people in their lives.
- The most important factor is that children should be protected from physical and emotional harm.
Should a school be notified about the separation?
While it is not essential, we recommend that the school is notified of your separation to make sure that if parental consent is needed you are better consulted. It is a good idea to inform the school of your separation, especially if you are worried about the impact of the separation on your children.
You can liaise with the school to ensure the list of people who can collect children is kept up to date and any important changes at school are communicated to you.
What to avoid on social media if you are separating?
Just because you aren’t connected with your ex on Facebook/Twitter/Instagram/Snapchat etc., and/or have high security settings, don’t assume they won’t see what you’ve posted. These things have a way of getting back to your ex (and to the Court). You should assume that anything you post, or comment on, can and will be used against you in a dispute.
You might be angry with your ex, and need a place to vent, but social media is not the place to do it, particularly if you have children. This includes commenting on other people’s posts, posting in groups, posting inappropriate photos, sending private messages, etc. If you are about to post something that could offend your ex in any way or be used against you: just don’t! Before you hit the button, think to yourself, What would the Judge think if they were seeing this? Because chances are, if you end up in Court, that is exactly who will be reading your posts (along with the lawyers, your ex, the child experts etc).
Read more on this topic in a blog post produced by Kasey Fox.
Splitting assets after separation?
Marriage
You have to be separated for 1 year to apply for a Divorce. Once the Divorce Order becomes final you have 1 year to apply for a property settlement or spouse maintenance. If the time limit passes you can apply for leave out of time (i.e. to be allowed to make an application even though the time limit has passed).
If your 1 year time limit is approaching and you have not yet formalised a property settlement, you should contact us urgently for advice.
Defacto Relationship
You have 2 years from the date of separation to make an application for property settlement or spouse maintenance. If the time limit passes you can apply for leave out of time (ie, to be allowed to make an application even though the time limit has passed).
If your 2 year time limit is approaching and you have not yet formalised a property settlement, you should contact us urgently for advice.