What is a separation agreement and do we need one?
Separation is when a couple (whether by marriage, civil union or de facto) both agree to live apart. If this is what you both want to do, it is wise to make a separation agreement as a record of the decisions you have both agreed to.
A separation agreement can be a written or a verbal agreement, but it’s a good idea to have it in writing to avoid future conflicts or misunderstandings. You can also use a written separation agreement as proof that you have been separated for at least two years, if you later decided to get a divorce. It’s not necessary to have one in order to get a divorce, nor to qualify for a Sole Parent Support benefit from Work and Income.
A separation agreement should state:
- the fact that you and your spouse are separating
- the date of your separation
A separation agreement can also include:
- any agreements about the day-to-day care of your children
- how contact with the children will be arranged (custody and access)
- how relationship property will be divided
If the separation agreement is to include how you will divide your property, it will have to be in writing and a lawyer has to certify that you have both received individual legal advice. Otherwise the agreement can be informal and does not require the involvement of lawyers or the court.
What is a separation order and when would we need one?
A separation order is a Family Court order stating that you and your partner live apart.
You might need to apply for one if one of you wants to separate but the other does not.
A separation order can also be used as proof that you’ve lived apart for at least two years if you later decide to divorce - however it’s not a necessary prerequisite to an application for a divorce.
You also don’t have to have a separation order to qualify for the Sole Parent Support benefit (formerly known as the DPB).
Read more about separation orders when both of you agree to separate or when one of you doesn't agree, on the Family Justice website.
Can we separate without getting lawyers or the Family Court involved?
It depends on whether any issues arise which require going to court.
If you are separating from your partner, you may need to go to the Family Court to:
If the judge allows or directs you to have legal representation and you can’t afford a lawyer, you can apply for legal aid if you are eligible.
What do I need to do, to get a divorce?
The only ground for a divorce is that your marriage has broken down and is at an end – and the only way to prove this is by living apart for at least two years. Note that this can include brief periods of living together for a total of three months or less if the court is satisfied that these were attempts at getting back together and reconcile during this time.
Once you’ve been separated for two years you can contact the Family Court to apply for dissolution of marriage. You and your spouse can apply together with a joint application, or you can apply alone. The process for applying varies depending on whether you are applying jointly or singly, and – in the latter case - whether the other party agrees or disagrees with your divorce application.
You can apply for a dissolution order using forms on the Family Court website or your nearest courthouse. There is a fee of around $210 to apply for a dissolution (you can apply for a fee waiver if you can’t afford the fee).
You will also need to include a sworn written statement (affidavit) with your application, stating that;
- at the time the application is filed, you will have been living apart for at least two years, and
- you’ve made arrangements for the care of your children, or there is a good reason why you haven’t made arrangements.
You don’t need a lawyer to make the applications, but if you want information on how the law on dissolution applies to you, you can get advice from a specialist family lawyer at your own expense (legal aid is not available for dissolution).
More about the court process for divorce proceedings is on the Family Justice website. You’ll need to include a certified copy of your marriage or civil union certificate along with your application.
The order will take effect one month after it’s made. If neither of you oppose the order, and you need the order to be effective straight away, you can ask the Judge to make the order immediate.
What do I do if I’ve been served with divorce papers?
Being ‘served’ a copy of the application for dissolution of marriage, means your partner has applied for a divorce. Once you receive the papers you have 21 days to defend the application.
If you don’t want to oppose the application, do nothing. The application will be handled by a Court Registrar rather than a Judge, you won’t have to go to court, and your divorce will still be final (one month after the order is made).
If you oppose the application for a divorce, you need to file a Notice of Defence and an affadavit, which you can download from the Family Justice website or obtain from your nearest Family Court location. You can oppose the order on the grounds that you haven’t been separated for the necessary two years.
The application will go to a Court hearing before a Family Court Judge. At the hearing, the Judge will make the dissolution order (divorce final) if he or she is satisfied that;
- you have been living apart for two or more years, and
- you’ve made arrangements for the care of your children, or there is a good reason why no arrangements have been made
More information about how to respond to a divorce application is on the Family Justice website.
Do we need to have sorted out our relationship property before we can get a divorce?
No you don’t need to have sorted out your shared (relationship) property before you get a divorce, and the court will not deal with this as part of the dissolution application. However if you haven’t sorted this out yet and you need the Court’s help you need to apply within 12 months of the dissolution of your marriage. You can read more about this on our Relationship property page.