Preparing for Separation

When a marriage or de facto relationship ends, the emotional and practical challenges can be overwhelming. Couples who have built a life together, particularly those with joint assets or children, must navigate a range of legal, financial, and logistical issues. While every separation is unique, careful preparation can help minimise stress, reduce conflict, and avoid unnecessary costs. This guide outlines the essential steps to take when preparing for separation, helping parties to transition smoothly from a shared life to independent futures.

Deciding where to live after separation

One of the most immediate concerns during separation is deciding where each party will live. In many cases, one partner remains in the marital home while the other moves into temporary accommodation (such as a rental property or a family member’s home) until financial matters are settled. It is important to note that in Australia, remaining in the family home after separation does not give that party an advantage in the property settlement. The division of assets, including real estate, is determined by legal and financial factors, not by who continues to reside in the home.

Some couples may choose to continue living under the same roof for financial reasons or to provide stability for their children. In such cases, a married couple can still satisfy the requirement of living separately for twelve months before applying for divorce. To do so, they must demonstrate to the court that they have been living “separately under one roof,” meaning they lead separate lives despite residing in the same house. This can be supported by evidence such as sleeping in different rooms, maintaining separate finances, and informing friends or family of the separation. Affidavits from third parties may also be required to corroborate the claim.

Prioritising children’s wellbeing after separation

For couples with children, separation brings additional challenges in determining parenting arrangements. Courts expect both parents to prioritise the well-being of their children and to ensure they are shielded from conflict. It is essential that children are not exposed to hostility or used as bargaining tools in disputes. Parents should aim to put aside personal grievances and focus on providing a stable, supportive environment for their children.

When parents begin living separately, children typically divide their time between two households. To ensure clarity and consistency, it is advisable to establish a written parenting plan that sets out the agreed arrangements. This may include where the children will live, how time will be shared, and how major decisions regarding education, health, and extracurricular activities will be made. Courts strongly encourage cooperative parenting, and unless there are concerns such as domestic violence, children should have the opportunity to maintain meaningful relationships with both parents and extended family members, including grandparents.

Gathering important documents

Before separating, it is crucial to collect important legal and financial documents, as having these records readily available can prevent unnecessary delays or complications. Key documents include marriage certificates, prenuptial or binding financial agreements, passports, citizenship papers, driver’s licences, Medicare cards, and wills. Financial documents such as bank statements, superannuation records, mortgage or lease agreements, and details of any joint debts should also be gathered. Ensuring access to these records early in the process can help both parties prepare for property settlements and legal proceedings.

Managing finances and dividing assets

Financial separation is one of the most complex aspects of a breakup. Couples should take steps to ensure a fair and transparent division of assets by conducting a full assessment of their financial situation. This includes accounting for all joint and individual assets, such as real estate, investments, superannuation, and liabilities. In some cases, financial advisors or forensic accountants may be needed to uncover hidden assets or to provide accurate valuations, particularly if cryptocurrency or business interests are involved.

To prepare for financial independence, it is advisable to create a budget to assess individual living expenses and determine financial sustainability after separation. If necessary, seeking professional financial advice can help manage financial obligations and plan for the future. Depending on the circumstances, closing joint bank accounts, cancelling shared credit cards, or restructuring debts may be necessary to prevent financial disputes.

Maintaining effective communication

While separation often brings heightened emotions, maintaining open and respectful communication can make the process smoother, particularly when children are involved. It is crucial to avoid speaking negatively about the other party in front of children, as courts disapprove of parents who expose their children to conflict or attempt to alienate them from the other parent. If direct communication is difficult, engaging a mediator or using a lawyer to facilitate discussions may be beneficial.

It is also important to be cautious about social media use during separation. Under the Family Law Act 1975, publishing identifiable details about family court proceedings is illegal, and any social media posts related to the separation could be scrutinised as evidence in custody or property disputes. Avoiding discussions about the separation on social media and maintaining discretion can help protect legal interests.

Engaging a family lawyer early in the process can provide clarity on legal rights and obligations, particularly regarding child custody, property division, and financial settlements. A lawyer can help facilitate negotiations, prevent costly disputes, and ensure that both parties are treated fairly. By preparing in advance and seeking professional guidance, individuals can navigate separation with greater confidence and security. If you require legal advice on separation, divorce, child custody, or property settlements, contact Go To Court Lawyers at 1300 636 846 or send an email to schedule a consultation.