When learning how to start the separation process in Australia, the emotional and practical challenges can feel overwhelming. Whether you are ending a marriage or a de facto relationship, the first steps you take will shape how smoothly you move through the legal aspects, family arrangements and financial changes that follow.
Commencing the separation process
The law requires that separation be clearly established before you can proceed with divorce proceedings or property settlement. In Australia, couples are not required to go to the Federal Circuit and Family Court of Australia unless they cannot reach a negotiated outcome.
In fact, most couples resolve matters through Family Dispute Resolution (FDR), negotiation or agreements made with the guidance of their family lawyer. The court process is a last resort, generally reserved for cases involving family violence, complex disputes or when one or both parties refuse to participate in good faith.
Below, we outline ten practical steps to guide you through the early stages of separation.
Step One – Agree on a Separation date.
Agreeing on a clear separation date is helpful. This date becomes the marker for time limits under Australian law, including property settlement, spousal maintenance and when you can file a divorce application.
If you and your ex-partner continue to live at the same address, you may still be considered separated under one roof. In these cases, you will need evidence such as separate bedrooms, reduced or independent financial contributions, or statements from a family member or independent person confirming the separation. If a divorce application is later filed, the court may require a separate affidavit to demonstrate that the marriage separation was genuine if you lived under the same roof.
This date is also needed for Services Australia, Centrelink, Medicare, child support and taxation purposes.
Step Two – Don’t do anything drastic.
During the early stages of separation, emotions can run high. Now is not the time for impulsive decisions, like booking a trip to the Maldives or neglecting bills. Maintaining stability in the household is essential until you have a solid plan.
You may consider staying in the house until you determine your next steps. For those with children, creating a parenting plan with minimal disruption to their lives is essential. Maintaining a routine is essential. Sudden changes in schooling, daycare or living arrangements without consulting the other parent may work against you if a parenting order is sought later.
If family violence or domestic violence is present, your safety and the safety of your children must come first - seek immediate legal help, and obtain legal advice about protective measures. Additionally, venting on social media can backfire legally, regardless of who is at fault, so try to stay clear of it.
Step Three – Sort out your finances.
Financial arrangements are often one of the most stressful parts of separation. Begin by gathering financial information: bank statements, credit card records, mortgage and loan documents, superannuation balances, and payslips. These documents form the foundation for dividing property later.
If you hold joint accounts, consider opening separate bank accounts. You may wish to consider having your salary redirected and ensure that household bills continue to be paid until arrangements are clarified. Closing or limiting joint credit cards can help prevent unexpected debts, or the depletion of funds by the other party.
You should also prepare a budget reflecting your new circumstances and future needs. Spousal maintenance or financial support may be relevant in certain circumstances, such as where one spouse lives in financial dependence on the other. It might be beneficial to consult a financial advisor to help you navigate this transition. Money matters can dominate a separation, so separating your finances and understanding them thoroughly will ease the process.
You can also visit Services Australia to see what benefits you’re entitled to receive.
Step Four – Decide on living arrangements.
Living arrangements are often the most immediate concern. Decide whether one party will move out or whether separation under one roof will occur. Remaining in the same home can be financially practical, but it requires clear boundaries. Household duties should be separated, finances should be managed appropriately, and both parties should notify close friends, a family member or an independent person that the relationship has ended.
Safety and stability are the priorities in cases involving children. The Federal Circuit and Family Court of Australia expects parents to act in the best interests of the child, which may include keeping the child in the family home if safe and practical. If family violence is a factor, urgent legal help should be sought.
Step Five – Consider arrangements for the children.
If there are children involved in your separation, their wellbeing is the most important consideration. The Family Law Act makes it clear that the best interests of children come first. Wherever possible, parents are encouraged to work together to make decisions about their children’s care without the stress of going to court.
Many families find it helpful to create a parenting plan that sets out living arrangements, schooling, health care, and time with each parent. If you need something more formal, a parenting order can be made by consent through the Federal Circuit and Family Court of Australia.
When the court does need to step in, it looks closely at each parent’s ability to meet the child’s needs, the child’s views (if they are old enough to express them), and any special circumstances such as religion or cultural connections. For Aboriginal and Torres Strait Islander children, maintaining ties to culture and community is especially important.
In Australia, the law usually presumes shared parental responsibility. This means both parents remain involved in major decisions about schooling, health, and religious or cultural upbringing. Everyday matters, like meals or bedtime, are normally decided by whichever parent the child is with at the time.
Of course, not every situation is straightforward. If there are concerns about domestic violence, substance abuse, neglect, or if communication with your ex-partner has completely broken down, the court process may become necessary. In most cases, though, the law requires parents to try mediation or Family Dispute Resolution first, with the help of an accredited Family Dispute Resolution Practitioner. Many parents find that this process helps them reach an agreement that puts their child’s needs first, without the cost and stress of going to court.
Step Six - Discuss divorce or separation of a de facto relationship.
Under Australian law, you must be separated for at least twelve months before filing a divorce application. Legal separation involves living apart without formally ending the marriage, allowing couples to negotiate property, financial, and parenting arrangements. During this period, you can draft a separation agreement outlining the division of assets, child custody arrangements and other essential matters.
While legal separation doesn’t require court proceedings, divorce is a formal legal process, and it can be complex. One spouse, or both parties jointly, may apply. Where separation has occurred under one roof, the court requires evidence to prove the marriage has genuinely ended.
Divorce proceedings are filed online through the CommCourts Portal. The court considers the application, and in some cases, a divorce hearing is scheduled. If there are children under 18, the court considers whether proper arrangements are in place before granting a divorce order.
While not all situations allow for this, aiming for an amicable divorce can significantly ease the process. Consider mediation to resolve disputes and reach agreements without going to court. Mediation can be less combative and more collaborative, making it easier to negotiate terms that are acceptable to both parties. Seek legal advice from your family lawyer about the specifics of your situation and what the divorce process will entail.
Step Seven – Obtain legal advice.
Separation is an emotionally challenging process that can, unfortunately, bring out the worst in people. With it come many legal obligations and responsibilities. While legal information is available online, nothing replaces tailored advice from a trusted family lawyer who understands your unique situation. Consulting a family lawyer who listens and understands the legal system will alleviate some of your stress.
An experienced family lawyer will guide you through each step, ensuring you make informed decisions. They will provide legal advice on parenting arrangements, spousal maintenance, dividing property, time limits, and your legal rights under the Family Law Act.
If you’re feeling overwhelmed and unsure where to start, you may wish to consider obtaining early legal advice before you take any of the above steps. Eliza Legal offers a one-off Initial Consultation at a fixed fee so you can receive the support you need to navigate the family law system during your separation journey.
If you cannot afford a private lawyer, you may be eligible for Legal Aid or community-based legal help. Early advice can save time, reduce disputes and help you avoid mistakes that may be costly to correct later.
Step Eight - Consider shared assets and the property pool.
Property division considers both financial and non-financial contributions of the parties and future needs. Assets include property, vehicles, savings, superannuation and businesses, while debts include mortgages, loans, and credit cards.
Australian law requires full and frank disclosure of finances. Negotiation or mediation is often the best way forward. Many couples finalise dividing property by filing consent orders with the Federal Circuit and Family Court of Australia, or entering into a binding financial agreement.
If agreement cannot be reached, the court considers four main steps:
- identifying and valuing all assets and liabilities
- assessing contributions of both parties (including homemaking and parenting)
- considering future needs of each spouse and the children
- deciding whether the proposed outcome is ‘just and equitable’
Step Nine – Explore mediation and dispute resolution.
It's normal for separating couples to have some difficulties deciding on all of the details without some assistance. You can work directly with a lawyer to negotiate on your behalf, or try Mediation or Dispute Resolution.
Mediation allows both parties to discuss issues such as parenting orders, property settlement, and spousal maintenance in a neutral setting. Many agreements reached this way can then be formalised through Consent Orders without needing a court hearing.
Only in certain circumstances, such as family violence or when the other parent refuses to participate, will the law allow you to bypass this step and proceed directly to court.
Step Ten – Look after your wellbeing.
Separation can be one of life’s most stressful experiences. It is important to look after your physical and emotional wellbeing. Counselling, support groups or guidance from a trusted friend or family member can make a significant difference.
Taking care of yourself helps you approach legal aspects with clarity and reduces the risk of burnout. Seeking support is not a sign of weakness but a practical way of managing the challenges of separation.
Guiding you to a better future
Eliza Legal is a leading family law firm based on the Mornington Peninsula, dedicated to providing tailored legal services with compassion and integrity. If you are unsure where to start with the separation process get in touch. Let's see if we're a good fit - we'd love to help you.
