Separation vs Divorce
If you’re going through a relationship breakdown, the legal jargon can feel overwhelming. One question we hear a lot from clients is: “What’s the difference between separation and divorce – and which one do I need?”
Many people assume divorce is the process of dividing assets and separating a family. But in reality, divorce is just the legal paperwork that formally ends the marriage.
What is a Legal Separation?
You are considered legally separated when one or both people decide to end a relationship (such as a marriage or de facto relationship), and clearly communicate this through words or actions.
This might include:
- Sleeping in separate rooms
- Dividing household chores
- Managing bills separately
You can still be legally separated while living under the same roof, whether for financial reasons, convenience, or to stay close to your children.
What Happens After Separation?
Once you’ve separated, there are some important things to start thinking about:
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Parenting arrangements
Separation is an emotional time for everyone – especially children. It’s vital to reduce the impact on them by creating a parenting plan that supports their wellbeing. Open communication, flexibility, and cooperation between co-parents can help ensure a stable environment during this transition.
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Property division
This includes dividing the family home, savings, investments, superannuation, and more. The process can take a few months or several years, depending on how complex your assets are – and how willing both parties are to negotiate.
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Spousal maintenance
In some cases, one partner may need to support the other financially after separation. This depends on your specific circumstances – seeking legal advice is essential to understand your rights and obligations.
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Update your Wills and Power of Attorney
Separation affects more than just your relationship – it also impacts your legal and financial affairs. Make sure you review and update your:
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- Will
- Power of Attorney
- Enduring Guardian
- Binding Death Benefit Nomination
Overlooking these could lead to unintended consequences later.
You don’t need to wait until you’re divorced to deal with these matters. Most people start the process soon after separation.
What Is Divorce?
A divorce is the formal, legal end of the marriage. It’s a separate process, and handled by the Federal Circuit and Family Court of Australia.
You can apply for divorce 12 months and 1 day after separating. It’s important to note that divorce does not resolve financial or parenting arrangements – it’s the final legal step to dissolve the marriage.
So, do I need a divorce to divide property or make parenting arrangements?
No. You don’t need to be divorced to sort out your property or parenting arrangements. In fact, you should ideally resolve these matters as soon as possible after separation.
Once a divorce is granted, you have 12 months to finalise your property settlement. After that, you may need special permission from the Court to proceed.
What should I do first if I’m thinking about separation?
1. Get legal advice early
Even if you haven’t officially separated yet, it’s worth speaking with a family lawyer to understand your options. Don’t bury your head in the sand – the earlier you act, the better prepared you’ll be.
2. Understand your financial position
If the separation involves shared financial responsibilities, it’s essential to assess your financial situation. Create a clear overview of your assets, debts, and expenses. This will help you make informed decisions about how to divide assets and responsibilities. If you shared accounts, consider opening a bank account and credit card in your own name.
3. Plan for practicalities
This includes living arrangements, shared passwords, and emotional support. Separation can feel overwhelming, but having a plan will help you feel more in control.
Download our free Separation Checklist
Need Guidance?
Whether you’ve just separated or are still deciding what to do, you don’t have to navigate it alone. We support individuals and families across NSW with clear, compassionate legal advice tailored to your situation.
Reach out for a confidential conversation – contact us.
You deserve to feel supported and informed, every step of the way.
Disclaimer: The content presented in this article is offered for informational purposes and should not be construed as legal advice or a substitute for professional guidance. If you have questions or require legal assistance, we strongly recommend consulting with a Solicitor to address your individual circumstances.