Many people are surprised to learn that there is no formal paperwork* required to be considered separated in Australia. Separation occurs when a relationship has ended and this is communicated by one or both of the parties and that decision is then acted upon.

While separation itself is straightforward, we understand that what follows can feel overwhelming. Separation can affect important issues such as property division, parenting arrangements, spousal maintenance, and divorce. These matters are not resolved automatically and usually need to be formally addressed to provide clarity and certainty for everyone involved.

This guide explains how separation works under Australian law, the steps you may need to consider next, and when seeking legal advice can help you move forward with confidence.

What Legal Separation Actually Means in Australia

There is no separation certificate

Unlike some other countries, Australia does not have a formal separation process that requires court approval or official documentation. Separation happens when one or both parties decide the relationship has ended and act on that decision. There is no certificate, registration, or legal declaration required*.

* If you have a financial agreement you may be required to execute the Separation Declaration to confirm separation has occurred and ensure that the terms of the Agreement are then effected.

How separation is defined legally

Legally, separation occurs when at least one person in the relationship forms the intention to end the relationship and acts on that intention. This typically involves communicating the decision to the other person and making changes to how you live your lives. The date of separation is important because it affects the timeline for divorce and can be relevant to property settlement.

Separated under one roof

Many couples continue to live in the same house after separating, often for financial or practical reasons. This is sometimes called being “separated under one roof”. For this to count as separation, there generally needs to be evidence that the relationship has ended, even though you are still sharing a residence.

Indicators that separation has occurred while living together may include:

• Sleeping in separate rooms
• No longer sharing meals or household tasks as a couple
• Informing family and friends that the relationship has ended
• Managing finances independently
• No longer attending social events together as a couple
• No longer engaging in a sexual relationship

When your separation date matters

Your separation date is significant for several reasons:

• It starts the 12-month clock for divorce eligibility.
•  It can affect property settlement, as the court considers contributions and changes in circumstances up to the date of separation (and sometimes beyond). 
• For de facto couples, it triggers the two-year time limitation for property settlement matters to be commenced. 
• For these reasons, it is worth documenting your separation date clearly.

Divorce – The 12-Month Separation Rule Explained

Why 12 months is required for divorce

Under Australian law, you must be separated for at least 12 months before you can apply for a divorce. This is a requirement under the Family Law Act 1975. The purpose is to ensure that couples have had sufficient time apart to be certain that the marriage has broken down irretrievably.

Can you reconcile and restart the clock?

If you reconcile and resume living together as a couple for three months or more, the 12-month period restarts. However, if you reconcile for less than three months and then separate again, that time does not reset the clock. You can have one period of reconciliation of up to three months without affecting your separation date.

Exceptions to the 12-month rule

There are very limited exceptions to the 12-month separation requirement. These generally relate to unusual circumstances and are rarely granted. For the vast majority of divorces, the 12-month period is mandatory.

Property Settlement, Childrens matters and maintenance – You do not have to wait 12 months for everything

While you must wait 12 months to apply for divorce, you do not have to wait 12 months to get legal advice, formalise parenting arrangements, or begin property settlement negotiations. In fact, it is often advisable to address these matters sooner rather than later. .

Proving Separation When Needed

When you need to prove your separation date

In most cases, you will not need to prove your separation date in detail particularly if the other party does not dispute the date.

However, proof may be needed if your spouse disputes the separation date, if you separated under one roof, or if the separation date is relevant to property settlement proceedings.

Acceptable evidence

Evidence that can help establish your separation date includes:

• Affidavits or Statutory declarations from you or witnesses
• Correspondence such as emails or text messages referring to the separation
• Change of address notifications
• Changes to Centrelink or other government records
• Bank statements showing separate accounts
• Statements from family members or friends

Separated under one roof: additional evidence needed

If any of your 12 month separation period includes a time when  you were separated while living in the same house, you will need to provide additional evidence. A divorce application in this situation will require an affidavit from you explaining how you lived separately, and a supporting affidavit from an independent person who has observed the arrangement, such as a family member, friend, or neighbour.

Why keeping records matters

Even if you do not expect to need proof, keeping a record of your separation date and the circumstances around it is sensible. A simple dated note or email to yourself can be valuable if questions arise later.

Documentation You Should Gather

Regardless of whether your separation is amicable or contested, having access to financial documentation is essential for property settlement. It is easier to gather this information early, while you still have access to joint records.

Financial records and asset documentation

Documents you should collect include:

• Bank statements from all accounts (joint and individual)
• Superannuation statements
• Tax returns and notices of assessment
• Property valuations or recent sales evidence
• Mortgage documents and loan statements
• Credit card statements
• Investment records
• Business financial statements (if applicable)
• Pay slips and employment contracts
• Evidence of values of any other assets such as Redbook valuations for motor vehicles

Why this matters for property settlement

Both parties have a duty to make full and frank disclosure of their financial circumstances during property settlement. Having comprehensive records makes this process easier and helps ensure you receive a fair outcome. Without documentation, it can be difficult to identify and value all assets and liabilities and ascertain your contributions and entitlements.

Do You Need a Separation Agreement?

Informal agreements: risks and benefits

Many separating couples start with informal arrangements about how they will manage finances and care for children pending reaching a final agreement and being able to document same. These can be practical in the short term, particularly when there are pressing issues and the separation is amicable. However, informal agreements are not legally binding or enforceable.  . If circumstances change or one party stops complying, you have limited options to enforce. Further, an informal agreement can give a false sense of security that financial matters between them have been finalised and they are now protected.  This is not necessarily the case. 

For security and certainty we encourage our clients to formally document any property settlement or children’s orders.

Parenting plans

A parenting plan is a written agreement about parenting arrangements that is signed and dated by both parents. While parenting plans are not legally enforceable in the same way as court orders, they provide a clear record of what was agreed and can be considered by a court if disputes arise later. However a parenting plan in of itself is not enforceable.

Important: Changes to parenting laws from May 2024

In May 2024, significant changes to the Family Law Act came into effect, updating how courts assess parenting arrangements. The old framework, which included a presumption of equal shared parental responsibility and required courts to consider equal time with both parents, has been replaced with a simplified approach focused on the child’s needs, safety and wellbeing.

If you come across information about “equal shared parental responsibility” or “equal time” as default starting points, that information is likely based on the old law. The current framework focuses on what is in each child’s best interests, with safety from family violence, abuse and neglect as a central consideration.

This is one of the many reasons it pays to get current legal advice rather than relying on what worked for a friend or family member a few years ago.

Consent orders: the gold standard

Consent orders are agreements that have been approved by a court. They can cover property settlement, spousal maintenance, and parenting arrangements. Because they are court orders, they are fully enforceable. If one party does not comply, the other can apply to the court for enforcement.

Consent orders provide the most certainty and protection. They do not require a court hearing; rather, you submit your agreed orders to the court for approval. The court will check that the arrangements are just and equitable (for property) or in the best interests of the children (for parenting).

Financial Agreements

A Financial Agreement (FA) is a legally binding contract about property and financial matters but can not document any arrangements with respect to children’s matters. FAs can be made before (often referred to as a pre-nup), during, or after a relationship or marriage. To be valid, each party must receive independent legal advice, and strict procedural requirements must be followed. FAs are enforceable in court if properly executed.

Which option suits your situation?

The right approach depends on your circumstances. A family lawyer can help you understand the options and choose the right approach for your situation.

When You Actually Need a Lawyer

You can separate without a lawyer, but should you?

Technically, you can separate, negotiate arrangements with your partner, and even apply for divorce and Consent Orders without a lawyer. However, the question is whether this is wise. Without legal advice, you may not understand your entitlements, you may agree to arrangements that disadvantage you, or you may miss important time limits.

Situations where legal advice is essential

Legal advice is particularly important if:

• There are significant assets to divide
• You have children and cannot agree on arrangements
• There are concerns about family violence, abuse, or safety (under the current Family Law Act, safety is the first consideration courts assess when making parenting orders, so getting advice early ensures your concerns are properly documented from the outset)
• Your partner has a lawyer
• There is a power imbalance in the relationship
• Complex financial structures are involved (businesses, trusts, self-managed super funds)
• You are unsure about your rights or entitlements

Early advice vs waiting until problems arise

Many people wait until problems develop before seeking legal advice. By then, they may have already made decisions that affect their position. Early advice can help you understand your rights from the start, avoid common mistakes, and plan a sensible path forward.

Often it is easier to reach an agreement with respect to property and certainly children’s matters while things remain amicable between you.  Often waiting until an issue arises can make reaching an agreement more difficult. 

What to expect from your first appointment

A first consultation with a family lawyer is a chance to talk through your situation, ask questions, and receive initial guidance tailored to you. You do not need to have everything worked out or have all your documents ready.

To make the most of your appointment, we ask clients to provide some details before the meeting using our secure online system. This allows your lawyer to understand your circumstances in advance, so your time together can be focused on advice, options, and next steps  helping the appointment run more smoothly and cost-effectively.

Common Legal Mistakes During Separation

Waiting too long to formalise agreements

Informal arrangements can work for a while, but circumstances change. If you wait too long to formalise agreements, you may find that your partner’s position has changed, or that time limits are approaching.

Informal arrangements that fall apart

Without legal backing, there is nothing to prevent your partner from changing their mind. What started as an agreed arrangement can become a dispute if one person simply changes their mind.

Missing time limits for property settlement

For married couples, property settlement proceedings must be commenced in the Court within 12 months of the divorce becoming final. For de facto couples, the limit is two years from the date of separation. Missing these deadlines could mean losing your right to claim or cause you a considerable amount of avoidable costs in an out of time application. 

Not understanding your rights before agreeing to terms

If you agree to a property split or parenting arrangement without understanding what you are entitled to, you may accept less than you should. Once agreements are formalised, they can be very difficult to change.

Timeline: What Happens When

Understanding the typical timeline for separation can help you plan ahead and ensure you do not miss important steps.

Separation day

The date of separation is when the relationship ends. This might be the day you or your partner moves out, or the day you communicate that the relationship is over. Document this date and the circumstances.

First three months

The early period is often about establishing temporary arrangements: where you will each live, how expenses will be managed, and how time with children will be shared. This is a good time to gather financial documentation and seek initial legal advice.

Six to 12 months

As the separation becomes established, it is time to start thinking about formalising arrangements. This might involve negotiating a property settlement, preparing consent orders, or attending mediation for parenting arrangements.

After 12 months

Once 12 months have passed, you can apply for divorce. Remember that divorce is separate from property settlement and parenting arrangements. You do not have to have everything resolved before applying for divorce, but you should be aware of the time limits that will apply once the divorce is finalised.

Property settlement time limits

For married couples: 12 months from the date the divorce order becomes final. For de facto couples: two years from the date of separation. If you miss these deadlines, you will need to seek the court’s permission to proceed, which is not guaranteed.

Start with Clarity

Understanding the legal framework for separation in Australia can help you navigate this process with confidence. While you do not need a lawyer to separate, having the right information and advice can make a significant difference to your outcome.

Our family law team is here to provide clear, practical guidance tailored to your situation. We explain your options in plain English and help you make informed decisions about your future.

Book a confidential consultation to discuss your separation and understand your legal options.