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Thinking of separating?

Frequently Asked Questions

Should I move out?

If you leave the house, it doesn't change your legal entitlements. However, it can mean that you have unstable or uncomfortable accommodation whilst the other person remains unaffected - this can impact each persons need or willingness to come to an agreement. 

What do we do next?

People make arrangements for their families in different ways:

  • some people agree verbally or in notes they've written;

  • some people need a little help to talk things through and go to mediation;

  • some people prefer lawyers to negotiate on their behalf;

  • once you've tried working it out you can ask the Federal Circuit and Family Court of Australia to decide for you. 

What are my rights in relation to my children?

Neither parent has automatic rights to a certain amount of time with their children or that their children must live with them. With no court orders in place both parents have the same 'parental responsibility' - the capacity to make decisions for their child. A Judge makes decisions about children based on what is best for the child and this is what should guide you too. 

Can I change the locks?

If you own the home, you can change the locks. If both you and your partner own the home, they can change them back. Changing the locks doesn't change a legal entitlement to the property. Changing the locks without discussing it first is likely to escalate the situation. 

Separation checklist

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It can be hard to know where to start - download our separation checklist (no email address required). It covers gathering important documents, your finances and your children. 

Information about children

When a court makes decisions about children, they look at three ideas:

  1. 'Parental responsibility' - who makes decisions for the child.

  2. 'Live with' - who a child lives with.

  3. 'Spend time with' - who a child spends time with.

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The court is required to go through specific steps and consider certain different options for each of these ideas.  

Parental responsibility

There is a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. The presumption doesn't apply if the parent has abused the child or has engaged in family violence.

Equal time consideration

If there is equal shared parental responsibility the court must consider whether equal time is in the child's best interest and reasonably practicable. 

Reasonably practicable includes looking at:

  • how far apart the parents live

  • the parents capacity to implement the arrangement

  • the impact the arrangement would have on the child.

Substantial and significant time consideration

If the Court doesn't make an order for equal time, it must consider whether substantial and significant time is in the child's best interest and reasonably practicable. 

Other arrangements 

If the Court doesn't make an order for substantial and significant time it may consider orders that are in the best interest of the child. 

Best interests of children

The court makes decisions about your children based on what is in their best interest - this is more important than anything else. No parent has automatic rights.

 

What is best for a child includes:

  • the benefit to the child in having a meaningful relationship with both parents and

  • the need to protect the child from harm from abuse, neglect or family violence. ​

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Information about property

Read more here:

There is no requirement to divide property 50/50. Each case is individual. The main steps the court goes through to work out who should get what are:

  1. to make a list of what you have - things either of you own and debts either of you have.

  2. to divide what you have by looking at:

  • contributions: what you brought to the relationship, what you did during the relationship and what happened after separation.​

  • what you both need for the future. 

Information about divorce

A divorce is a court order that your marriage has ended. 

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You get a divorce by applying to the court. You don't need the other person's permission or agreement. 

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A divorce application does not involve the court making a decision about your children or property, these are separate to the question of whether your marriage has ended. 

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For information on how to get a divorce read this:

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