A Guide to the Marriage Separation Process in Australia

couple sitting at the table

If your marriage has broken down and you no longer want to continue being in a relationship with your spouse, you may begin the separation process. Ending a marriage can be tricky when children, assets and money are involved. However, working with a lawyer and remaining calm and communicative throughout the process can help to ensure that marriage separation is a streamlined and simple experience.

What is the Marriage Separation Process?

Separation refers to the process of a married couple ending their relationship. Normally, the separation process includes a change in living arrangements so that the married couple are no longer living under the same roof, or they may begin living separate lives while staying in the same household. Marriage separation is often the precursor to divorce, but it is possible to separate and not legally end your marriage.

How to Begin the Marriage Separation Process

If you have decided that your marriage is irrevocably broken and you do not want to be with your partner anymore, you will begin the process of separation. There is no need to formally begin this process by engaging lawyers, although you may want to do so. A good first step is to have a conversation with your partner and make a decision to stop living together.

There is no need for your partner to agree to a separation. Sometimes, one spouse will want to continue with the marriage while the other doesn’t. If this is the case, you may need to begin the process of engaging with lawyers and other sources of advice on your own.

There are lots of things to consider when starting the journey of separation and involving plenty of support people is a good way to work through the process. For example, you may want to work with an account or a financial advisor to find out what your options are in terms of a financial settlement. You will want to seek out compassionate and objective legal advice from an experienced family lawyer. And you will want some trusted friends and family members to support you emotionally throughout the process.

Children and Parenting During Separation

If you have children, deciding the best way to care for them after a separation can be one of the most challenging parts of the process. Both parents will retain joint responsibility for children after separation, but this does not necessarily mean that they will spend equal time with each parent.

It is quite common for one parent to become the primary caregiver and spend majority of the week with the child, and for the other parent to spend less time with them. The way this is arranged and split up can be done between parents, with the help of their lawyers as necessary.

It is worth remembering that the best interests of the child need to be the first priority in cases of marriage separation. Often this can be a confusing and upsetting experience, particularly for young children, and parents should endeavour to make the process as easy as possible by avoiding conflict.

A legal settlement may be required during divorce proceedings to make long term arrangements for the care of children and decisions about their welfare. During the separation process, however, it is best to keep as much normalcy as possible in your child’s life.

Money and Property During Separation

Splitting up your assets is often a major pain point during the separation process. Sometimes you can wait for divorce to begin a property settlement, but it is possible to do this during the separation as well.

You should always formalise your settlement agreement with a financial agreement in court. This ensures that there can be no disputes later about the distribution of assets.

Some of the assets that can be divided during a separation include:

  • Cash
  • Shares
  • Superannuation
  • Vehicles
  • Real estate
  • Family trusts
  • Businesses.

Some couples are able to split up money and property without much difficulty. However, it can become tricky if one person has been the main earner in the relationship, or someone is at a career disadvantage due to time off taking care of children. If this is the case, it can be a good idea to seek out legal advice.

Working with a Family Lawyer

There is usually no need to work with a family lawyer during the early stages of separation. However, if you do want to proceed to formalising your marriage ending through a divorce, it is a good idea to engage a lawyer early so you can plan ahead and start thinking about the best way to permanently split up your assets. A lawyer can also assist with making long term arrangements for the care of any guide you through the relationship counselling process, advise you on your rights and obligations, and negotiate any parenting arrangements as needed.

Please see below some information brochures relating to divorce: