How to Legally Separate From Your Partner: A Comprehensive Guide to Your Legal Considerations

By November 20, 2023 No Comments

Are you considering legal separation from your partner? It’s a significant step that involves making informed decisions and following legal procedures. In this guide, we’ll walk you through the essential steps and provide insights into the importance of specific timelines in the process.

  1. Making the Decision

The first crucial step in legally separating from your partner is making the decision to separate. It’s not a decision to be taken lightly, as it has legal and emotional implications. Once you’ve decided to separate, it’s essential to take the necessary actions and communicate your decision to your partner.

Whether you were married or in a de facto relationship, separating involves more than just physically moving apart. You’ll need to address issues like arrangements for children and the division of finances. Resolving family law disputes is an integral part of this process.

  1. The Importance of the Separation Date

First and foremost, your separation date plays a pivotal role in property division cases within the Family Court. The law imposes time limits on initiating property cases, and these limits are directly tied to the date of separation. Whether you’re considering an application for consent orders or contemplating a more extensive property dispute, knowing this date is essential.

So, how can you ensure you have a clear and well-documented separation date? Here are some practical steps to consider:

  • Communication: Ensure that both you and your ex-spouse are on the same page regarding the date of separation. It’s helpful if you can mutually agree on this crucial date.
  • Document Everything: Keep records of any written or electronic communication between you and your ex-partner that discusses the separation or your living arrangements.
  • Financial Separation: If you’ve separated your finances, be sure to keep records of any financial agreements or arrangements made post-separation.
  • Legal Advice: Consult with a family lawyer who can guide you through the process and ensure that all necessary documentation is in order.
  1. Are there any time limits on our property matters?

If you’ve been through a divorce and you were once married, it’s crucial to file an application in the Family Court within 12 months from the date your divorce becomes final. This 12-month window is a strict requirement, and failing to meet it can complicate your legal proceedings.

For individuals who were in a de facto relationship and have now separated, the clock is ticking as well. You must file an application in the Family Court within 2 years of the date of separation. Just like with divorce, this timeframe is of utmost importance and must not be overlooked.

What if you miss these time limits? Is all hope lost? Not necessarily, but it’s a more complex path to tread. If you find yourself in this situation, you’ll need to seek special permission from the court to initiate your case in the Family Court or to apply for consent orders. However, it’s essential to note that leave or permission is not always granted.

  1. Applying for a Divorce

Before applying for a divorce in the Family Court, you must have been separated from your ex-partner for at least 12 months. This period of separation is a legal requirement for initiating divorce proceedings.

  1. What about the children?

One of the reassuring aspects of the Family Court is that there is no specific waiting time or time limit imposed when initiating a case concerning children. This means that parents can take the necessary steps to protect their child’s best interests without the added pressure of a ticking clock.

While there are no time constraints, the Family Court encourages parents to explore alternative dispute resolution methods before resorting to court orders. Family Dispute Resolution (FDR) is often the first step in this process. It’s important to note that, in most cases, attending FDR is a prerequisite before applying to the Family Court for child-related orders.

  1. Separated under one roof? We have that covered.

Breaking up is never easy, and it becomes even more complex when you’re in a situation where you’re still sharing a home with your ex-partner. In the world of family law, this unique circumstance is often referred to as ‘separation under one roof.’ If you find yourself in this situation, it’s important to know that you can still move forward with the divorce process, but there are some extra steps and considerations involved.

Understanding the Timeline

In many jurisdictions, you can apply for a divorce after being separated for 12 months. This applies even if you’ve spent some or all of that 12-month period living together under one roof with your ex-partner. However, when you’ve been separated under one roof, you’ll need to provide the court with additional information to demonstrate that your relationship has truly ended.

Supporting Affidavit

To prove that your relationship has ended, you’ll need to file affidavits with the Court. An affidavit is a sworn statement that outlines the details of your situation. Here’s how it works:

  • The person applying for the divorce (or both individuals in the case of a joint application) must file an affidavit detailing the circumstances of the separation.
  • Additionally, an independent person, such as a family member, friend, or neighbour, should also file an affidavit describing their observations and knowledge of the situation.

It’s essential to remember that each person should submit their evidence in separate affidavits. Furthermore, it’s wise for both parties and the independent person to be prepared to attend a court hearing if the court requests more information.

What to Include in the Affidavits

The affidavits should paint a clear picture of how and when your relationship changed, providing compelling evidence that it has indeed come to an end. Here are some examples of what you might include:

  1. Sleeping Arrangements: Describe how you no longer share a bedroom or sleeping space.
  2. Financial Separation: Explain how you have divided or separated your property and finances.
  3. Household Duties: Detail how you’ve stopped performing household duties for each other.
  4. Meal Preparation: Clarify that you now prepare and eat meals separately.
  5. Social Life: Mention that you no longer go out together or entertain friends as a couple.
  6. Disclosure to Others: Confirm that you’ve informed your family and friends about the separation.

By including this information in the affidavits, you’re helping the court understand the evolution of your relationship and why it has reached a point where divorce is the next step.

In conclusion, legally separating from your partner is a complex process that requires careful consideration and adherence to legal timelines. Overall, navigating the legal aspects of separation requires careful attention to detail and, often, professional guidance from a family lawyer. Should your have any questions in relation to this, please do not hesitate to contact one of our friendly lawyers today for further information.