SEPARATION LAWYERS IN SHELLHARBOUR

In Australian family law, separation refers to one or both partners deciding to end their relationship. Mutual agreement is not required. One person can make the decision independently. While many assume separation means physically leaving the shared home, this isn’t always the case. Financial pressures, parenting arrangements, or housing difficulties often make moving out unfeasible.

The law recognises a concept known as “separation under one roof,” where a couple continues to live in the same residence while acting separately in all other respects. Under the Family Law Act 1975 (Cth), couples must be separated for at least 12 months and one day before applying for divorce. This can be demonstrated through actions, conversations, or written records such as a formal notice.

Courts consider a range of details to determine if a couple has separated. Simply moving out isn’t always enough. If the relationship still resembles a partnership, such as sharing finances, socialising as a couple, or continuing intimacy, separation may not be legally recognised.

It’s common for separated couples to remain under the same roof, particularly when housing, finances, or parenting make living apart difficult. In these cases, separation can still be acknowledged, provided there is evidence the relationship has ended and the pair no longer operate as a couple in daily life.

When there’s no agreement on when separation occurred, and limited evidence like written messages or a physical move, the Family Court may be required to step in. The Court will assess several indicators to determine when the relationship ended, including:

Whether the couple continued to share a bedroom or sleep together, including intimate relations.

Whether family and friends were informed about the separation.

Whether the couple continued to manage their finances together or kept joint accounts.

Whether either party applied for financial support, such as Centrelink benefits, after the supposed separation.

Whether one or both parties continued to contribute to the other's daily responsibilities, such as household chores, cooking, or cleaning.

The official separation date can affect many legal outcomes, including time limits for property settlement, spousal maintenance, and child support. If this issue arises, the family law team at Kells can help assess your position, clarify your options, and represent you effectively in court if needed.

The date of separation holds legal weight in both divorce proceedings and property disputes.

In property matters, it marks the starting point for the time limit on filing a settlement application. For de facto partners, this deadline is two years from the day the relationship ended. The separation date also helps the court assess each person’s contributions throughout the relationship and any changes after the split.

When it comes to divorce, couples must be separated for at least 12 months before applying. The court will need to confirm this timeframe has passed before granting the divorce.

Separation refers to the point at which one or both people decide the relationship has ended. While this often involves living apart, couples can be considered separated while still sharing a home if they maintain separate lives.

Divorce is the legal process that formally ends a marriage after the required 12-month separation period. Importantly, divorce does not automatically address financial matters. Property division, child support, and spousal maintenance are handled separately and must be resolved through agreement, negotiation, or court intervention.

The separation date is crucial for setting deadlines related to asset division, eligibility for maintenance, and government entitlements. Getting legal advice early helps clarify your position and prevent delays or missed opportunities.

Deciding who remains in the home can be difficult, especially when emotions are high. Legally, the right to stay often depends on property ownership or who is named on the lease. If one person owns the home or is listed as the tenant, they usually have the right to remain. If ownership or tenancy is shared, both parties are generally allowed to stay.

Some couples choose to live separately under one roof, although this can create additional stress. In most cases, one person moves out. If there’s no agreement, the court can decide who has exclusive use of the home and order the other party to leave.

If you're unsure about where you stand or how best to approach the situation, the family lawyers at Kells can help. We assist with negotiating living arrangements or applying for exclusive occupancy orders when required.

Following a separation, both individuals remain accountable for their personal debts, as well as any shared obligations from the relationship. Disagreements often arise when one person stops contributing to joint financial commitments, leaving the other to manage repayments alone or risk falling into arrears.

If you're struggling to meet your financial responsibilities, you might qualify for spousal maintenance. This can be paid either as ongoing instalments or a one-off amount to help cover essential costs. Where children are involved, child support will usually apply. The Child Support Agency determines the amount by reviewing both parents’ incomes and how much time the children spend with each.

Sorting out financial arrangements after a split can be difficult, especially when emotions are high. If you’re dealing with disputes about debts, financial support, or care arrangements for children, the family law team at Kells can provide clear direction and help you take the next step.

In many cases, couples are able to reach practical agreements outside of court. Conversations with the help of family lawyers, or through structured alternatives such as mediation or arbitration, often lead to faster and more cooperative outcomes. These options can be especially useful when resolving parenting schedules or dividing property.

That said, some situations require formal intervention. If disputes can’t be resolved privately, or if the issues are particularly complicated, applying to the Family Court may be necessary to obtain enforceable orders. This is often the case in matters involving high-value assets, complex parenting disputes, or one party not engaging in good faith.

Speaking to a family lawyer early on can give you clarity about your position and help avoid unnecessary conflict. At Kells, we’re focused on resolving matters efficiently and effectively, with your best outcome in mind.

If your former partner holds greater financial means, you may be eligible for support to help manage everyday expenses after a separation. Common avenues include:

• Spousal Maintenance: A periodic or lump sum payment from the higher-earning partner to the lower-earning partner to help cover day-to-day living costs.
• Litigation Funding: Financial assistance from the wealthier partner to cover legal costs during separation proceedings.
• Child Support: Payments made by one parent to the other to assist with the costs of raising children. The amount is determined by both parents’ incomes and the amount of time each parent spends with the children.

To ease financial pressure, you might consider remaining in the family home rather than leasing elsewhere or renegotiating shared bills, particularly if you are not listed on the accounts.

At Kells, our separation and family law team can provide clear advice on what support may be available to you and help you plan your next steps.

Separation is not a formal legal process in itself, but there are key steps that help define and document the change:

• Communicate Your Intentions – Clearly inform your partner that you intend to separate. Whether this is done verbally or in writing, it’s essential to demonstrate your intention to end the relationship.
• Decide on Living Arrangements – You can either move out or continue living under the same roof, but you must show that your lives are now separate. This means dividing household responsibilities, finances, and social activities.
• Notify Relevant Organisations – Inform institutions like Centrelink, Medicare, and the Child Support Agency about your separation. You should also update your bank, schools, and other relevant organisations to reflect your new status.
• Arrange Parenting Plans – If you have children, set up a parenting plan outlining how their care will be managed. This plan can start informally, but eventually, it may need to be formalised.
• Address Financial Matters – Work with your partner to divide assets, debts, and ongoing financial obligations fairly. Ensure both parties are clear about their share of joint property and responsibilities.
• Seek Legal Advice – Consult an experienced family lawyer to understand your rights and obligations. A lawyer can guide you through issues like property division, child custody, and spousal maintenance.
• Draft a Separation Agreement – Formalise your separation with a written agreement outlining the division of assets, debts, and child custody arrangements. This is essential for preventing future disputes.
• Consider Mediation – If disagreements arise, mediation services can help you resolve them amicably, without resorting to costly and stressful court proceedings.

These steps help give structure to the separation and allow each party to move on with clarity. If you’re unsure where to begin, Kells can guide you through the process and help you make informed decisions at every stage.