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Why Is It Important to Identify the Differences Between Separation and Divorce?

Family breakups are among the most stressful and difficult experiences any family may face. Family law is a specialised and highly complex field of law, so you must get the advice of a specialist family lawyer. One of the first things you must understand is the difference between separation and divorce. This brief post will […]

Why Is It Important to Identify the Differences Between Separation and Divorce?

Why Is It Important to Identify the Differences Between Separation and Divorce?

Family breakups are among the most stressful and difficult experiences any family may face. Family law is a specialised and highly complex field of law, so you must get the advice of a specialist family lawyer.

One of the first things you must understand is the difference between separation and divorce. This brief post will cover some of the most critical aspects of both. 

Legal Separation vs Divorce in Australia


Ending a marriage or de facto relationship is known as separation under Australian family law. Simply put, when two people stop living together as a couple, they become separated. One or both spouses may start the separation process. Under some circumstances, living apart from one another is also feasible. Registration of a separation is not necessary. You must speak with your family lawyer to receive the best guidance for your specific situation.

Separation in Australia can be without legal processes or papers. However, you may need to notify agencies such as Centrelink


The formal legal end of a marriage is called a divorce, which frequently happens after separation. To prove that your marriage has “irretrievably broken down,” you must have been separated for at least 12 months to apply for a divorce. Your case’s specific facts will be considered when assessing your separation. Australian family law does not believe who is to blame for the marriage breakdown.

Although separated spouses do not have to file for divorce, you must talk with a divorce attorney to learn about the legal implications of staying married. It’s also critical to understand that, following the breakdown of a marriage, property settlement and parenting arrangements are not the same as divorce.

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separation versus divorce: Key Differences

One of the primary differences between separation and divorce is that should you decide to be legally separated but not divorced, your marital status will remain as married, and as such, you are unable to marry again in the future.

While separation and divorce both include living apart from one’s spouse (perhaps in the same house), the two processes differ in essential ways:

  • Legal status: A divorce ends a marriage legally; separation does not.
  • The division of assets and liabilities: After your separation, you can begin finalising the distribution of your assets and obligations and get the family court to approve them. Divorce does not involve assets or liabilities. It is just a legal confirmation of the breakdown of your marriage.
  • Remarriage: Couples who separated are still legally married and cannot remarry. You can remarry when your divorce is finalised.
  • Health insurance and other advantages: In some instances, legally separated couples may still qualify for health insurance and other benefits through their spouse’s work or family insurance premiums. These benefits often stop after you divorce. Check all insurance certificates to confirm you remain covered during and after divorce, so you are not paying premiums for coverage that you cannot claim if the need arises.

Time and expense

The complexity of the case and the level of legal engagement affect the cost and duration of a separation or divorce.

Regarding the financial and temporal implications, the decision to separate is straightforward.

However, property settlement, or financial separation, can be an expensive and time-consuming procedure that occasionally requires family court involvement and legal assistance. At Aylward Game Family Law, we provide a seamless, quicker, and more affordable alternative to assist divorcing spouses in avoiding this.

Divorce is more complex than agreeing to separate, but it is typically far more accessible than a financial separation. Whether you file for a divorce jointly or alone, or if you qualify for concessions, there is a fixed fee. See the Federal Circuit and Family Court of Australia (FCFCOA) for current expenses.

The Separation Process In Australia

Whether a couple is de facto or married, the legal separation process in Australia is essentially the same. There is no preset legal separation procedure; you can obtain a separation without applying with a court or a government agency. Unlike a divorce, there is no certificate for a break.

You have some immediate choices regarding money and, if any, any children from the connection. While you and your family will find the process more manageable, you can wait to make long-term decisions if you can reach temporary agreements.

Here are a few things you should think about or do right away:

  • Decide where your kids will live and who will care for them.
  • Talk about your financial plan for supporting yourself and your kids, as well as that of your ex-partner.
  • Establish a payment plan for all payments, such as rent or a mortgage, and any outstanding obligations.
  • Choose who will live in the family home.
  • Inform government agencies such as the Child Support Agency, Medicare, and Centrelink that you have split.
  • Notify your bank, insurance company, and retirement fund of your separation, and arrange for joint bank accounts.
  • Notify your friends and family that you are separating.

Suppose you are married and want to apply for a divorce, divide your assets, or show your separation in the future by continuing to live together. In that case, you must notify the above organisations and institutions of your separation.

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What Does the “Marriage Separation Process” Mean?

Separation is simply the term when a couple no longer lives together. 

So, technically, you don’t have to be married to get separated. Still, we’re using the term here to define (without too many more words!) the steps to end a severe or long-term relationship, whether married or de facto, in a complete yet fair way for all parties involved. 

Marriage might or might not include divorce.

Keeping this in mind, the marriage separation process in Australia includes:

  1. The initial choice and discussion; 
  2. Setting up the required resources and guidance; 
  3. Attempting to come to a property and parenting agreement; 
  4. Formalising and implementing the agreement;
  5. Starting anew.

separation law in Australia

separation law in AustraliaDe facto relationships or marriages ending are referred to as separated under Australian Family Law. This is not the same as the divorce date. The date of separation should be noted for your divorce application (if you were married) and if you desire a formal legal settlement of your funds, even though it is not essential to formally register the separation.

De facto couples that have separated have two years from the separation date to file for divorce to settle any property and money disputes that may arise after the relationship ends.

The circumstances of both parties can alter dramatically when a couple separates. Even though separations do not always result in divorces, speaking with knowledgeable family lawyers as soon as you separate can help you plan for the future and understand your legal rights and obligations. 

How to separate financially from a spouse

The Court determines a person’s entitlement to a property settlement through a four-step process. The same procedure is used by family lawyers to counsel you and is used in mediation and bargaining. Our goal is to ensure that the result you receive would fall within that range if the Court were to resolve any disagreement.  

  1. Determine the property pool.

A property settlement lawyer helps clients determine the property pool by cataloguing and assessing each party’s assets, debts, and retirement interests. A formal appraisal of significant assets, such as enterprises and real estate, should be obtained. It is imperative to guarantee the complete and truthful revelation of every individual’s assets and financial circumstances. Finally, any changes in asset values between the separation date and settlement date should be evaluated. For a “just and equitable” property settlement, there must be a precise depiction of the property pool, and here is where the lawyer comes in. If you would instead bargain directly with the opposing party, your attorney can help you at this stage.

  1. Assess contributions.

Each partner in a relationship typically contributes significantly to the assets, debts, and retirement funds they have amassed together. Contributions towards property, obligations, and superannuation can be made in cash or kind. Additional evaluations include contributing to the family’s welfare through homemaking and parenting. Your attorney can help you understand how each donation could change your rights at the time of property settlement.

Financial contributions can include:

  • any property, liabilities, and superannuation a person had when you initially started living together.
  • how each individual used their property and income to acquire, conserve, and maintain assets during and after the relationship.
  • Finances each person used for the welfare of the family

Non-financial contributions may include:

  • Unpaid labour involved in the purchase, preservation, and upkeep of real estate, including unpaid repairs, renovations, and landscaping
  • Contributions from homemakers, which could include “domestic” tasks, cooking, cleaning, and lawn mowing
  • Parenting contributions are weighed equally with the contributions of the other person who works outside the home and supports the family. Parenting contributions include time and sacrifices made by someone who may decide to stay home with the kids and give up part or all of their profession.
  1. Evaluate future needs

The third phase involves evaluating each person’s potential future demands. A person’s age, health, income, assets, and financial resources are only a few of the many variables that determine their future demands, as is the possibility of providing primary care for children. Other considerations include a person’s required financial obligations and physical and mental ability to work in a productive job. Assessing each person’s potential to earn money or income in the future is frequently crucial. Given that the party in question may be financially disadvantaged and require a more significant share of the property pool to meet their future demands, this could modify the property settlement in favour of the party with a much lower potential for capital regeneration in the future. 

At this point, your attorney will assist you in identifying any issues that would necessitate making adjustments to account for them. 

  1. Determine if the suggested solution is “just and equitable

Your lawyer will take into account a proposed outcome. They will objectively examine it and determine if it is a “just and equitable” allocation of property and superannuation.

Our lawyers may provide you independent legal advice on the benefits and drawbacks of entering into the proposed division and whether the Court will likely grant the Orders sought if you and your ex have already suggested Consent Orders or a Binding Financial Agreement.

lawyers for legal separation

If you are considering separation or divorce, you must seek immediate legal guidance from an expert family lawyer about your specific situation. By being proactive and seeking guidance before or during the separation, we can provide you with vital information so that you may make sound decisions after the separation to reduce your mental and financial stress.

Contact us online or call (1800) 217 217 to schedule a consultation with one of our experienced Family Lawyers. We will provide you with guidance and a plan to get you from where you are to where you want to go as quickly and affordably as possible.

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Contact Our Accredited Family Law Specialists.

Frequently Asked Questions (FAQs)

Q: What separates a separated person from a divorced person?

A: The choice by parties to terminate a relationship is referred to as separation. While divorce is the formal process of ending a legal marriage with specified standards and court recognition, it lacks formal legal proceedings.

Q: How can one define separation?

A: Whether a couple is married or in a de facto relationship, “separation” in Australian family law describes their decision to stop dating and live apart.

Q: What does divorce mean precisely?

A: The formal procedure for formally recognising the dissolution of a legal marriage is called a divorce.

Q: What is the legal status of separation?

A: Separation differs from divorce in that it begins when a couple ceases their marital or de facto relationship and follows through by living apart. There is no official legal process for separation, but the date of separation affects divorce, property settlements, and financial matters.

A: What is the legal status of a divorce?

A: Divorce is granted one month and one day after the Family Court approves the application, and the divorce order acts as documentation that the divorce was completed. Parties seeking divorce must go through a judicial process with the Federal Circuit and the Family Court of Australia.