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Separation

Separation marks the end of an intimate partner relationship. This page explains what the law says about separation, what evidence can help protect your position, and the key time limits you should know about.

What does “separation” mean?

“Separation” isn’t fully defined in the Family Law Act 1975 however Section 49 of the Act does confirm two important things: you can be separated even while still living under the same roof, and one partner alone can bring the relationship to an end, you don’t both need to agree. Court decisions have added detail to this. Broadly, the Court looks for three things:

• One or both partners intend to end the relationship.
• The partners act on that intention, or act as though the relationship has ended.
• Where only one partner considers the relationship over, they communicate that clearly and unmistakably to the other partner.

Separating under the same roof

You don’t have to move out to be separated. Separated couples can remain living in the same home and still be legally separated, but the less clear-cut the physical separation, the more evidence you may need to show that the relationship has genuinely ended.

This matters because disagreements about the date of separation are common when partners continue to share a home, and that date can affect both your eligibility to apply for divorce and how your property is divided.

Confirming your separation date

We recommend that, as soon as it’s safe to do so, you confirm the end of the relationship to your ex-partner in writing. Email is best, since it records the date and time it was sent. Keep this record- you may need it later for your divorce application or during property settlement negotiations.

If you’re separated under one roof, it’s also worth taking these steps:

• Sleep in separate rooms and note the date you started doing so.
• Tell family and friends that you’ve separated.
• Stop socialising together as a couple.
• Reduce the household tasks and services you do for your ex-partner.
• Separate your finances where you can.
• Keep records of what you contribute, financially and otherwise, after separation.

How separation affects property settlement

The date you separate, and what happens afterwards, matters for property settlement whether you were married or in a de facto relationship. The Court looks closely at what each person contributes after separation, and assets that come into existence after that date may be treated differently to those built up during the relationship. Where those assets are significant, this can materially affect your settlement.

Since 10 June 2025, the Family Law Amendment Act 2024 has also required courts to specifically consider the economic effect of family violence, including financial and economic abuse when weighing contributions and dividing property. If family violence has affected your finances during or after your relationship, the Court must now take that into account.

Having clear, contemporaneous evidence of your separation date reduces the risk of disputes about post-separation contributions.

Time limits you need to know

There are strict time limits for starting property settlement or spousal maintenance proceedings after separation:

• Married couples: 12 months from the date your divorce order comes into effect.
• De facto couples: 2 years from the date of separation.

Missing these deadlines doesn’t necessarily shut the door. The Court can grant leave to apply out of time, but only if you can show that you, or a child of the relationship, would suffer hardship if the application weren’t allowed. The Court also weighs the reasons for the delay, the merits of your case, likely legal costs, and any prejudice to the other party. This kind of application is usually avoidable, and almost always more costly and stressful than acting in time.

Before filing with the Court, you’ll also need to meet the pre-action procedures in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 including, taking genuine steps to resolve the dispute, such as exchanging written settlement proposals and, in most cases, attending mediation.

Thinking about divorce?

To apply for divorce, you and your partner need to have been separated for at least 12 months, including any period spent separated under one roof. Short periods of reconciliation (up to three months in total) won’t necessarily reset this clock.

A note on safety

If it isn’t safe for you to remain in your home, to tell your partner that you’ve separated, or to take any of the steps above, your safety comes first and the legal and evidentiary steps can wait.

If you are in immediate danger, please contact 000.

Support is available through 1800RESPECT (1800 737 732), who can provide confidential family violence counselling and support. Talk to us about how to protect your position safely.

How we can help

At Empower Family Law & Mediation, we can advise you on every aspect of separation, helping you properly document your separation date, giving you practical steps for the weeks ahead, and working with you to explore mediation and settlement options well before any statutory deadline applies.

Please call us on (03) 7020 6542 to discuss your situation and how we can help your family.

Speak with us

Your first 30-minute consultation is free. Call (03) 7020 6542 or contact our team to discuss your circumstances and next steps.

Phone: (03) 7020 6542

Email: info@empowerfamilylaw.com.au

Let us be your voice in troubled times.

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