You are separated when you stop living together as a couple.
Separation occurs when at least one person in the relationship makes the decision to separate, acts on that decision and tells the other person. Your partner does not have to agree.
You can be separated and still be living in the same home.
You are separated when you stop living together as a couple. One person may move out of the home, or you can be still living at home together but have separate lives—this is called ‘separation under the one roof.’
You may have to prove these living arrangements to agencies such as Centrelink. When deciding if you are separated under the one roof, they will consider whether:
- you sleep together.
- you have sex or sexual activity.
- you share meals and domestic duties (in a different way to when you were married).
- you share money and bank accounts.
- family and friends think of you as separated.
No single factor is conclusive.
How do we separate?
There are no legal processes to separate. You do not have to apply to a Court, to a government organisation, or fill in any forms. You will not get a certificate saying you are separated, but you may need to:
- tell organisations such as Centrelink, the Child Support Agency and Medicare.
- make proper arrangements for any children involved.
- tell your family and friends.
- sort out your financial affairs—work out how debts and loans will be paid, whether you have joint bank accounts, what your superannuation or insurance entitlements are and change your will. You will need to tell your bank/s, and superannuation and insurance companies that you have separated.
Taking these actions will help prove that you are separated.
In most cases, you and your ex-partner can decide who will leave the home. If you can’t agree then you can apply to the Court for a sole use and occupation Order forcing one person to leave. This Order is only made in special circumstances.
If you have experienced domestic violence you can ask the Court for a domestic violence protection Order forcing the other person to leave the home.
A person cannot be forced to leave a house they own in their own name or jointly unless the Court has made a sole use and occupation Order or a domestic violence protection Order.
If there is a domestic violence protection Order against you and it says you must not be at your home, then you have to leave.
If you have to leave you will not lose your rights to the house or your possessions. You may be able to return at a later time. You should think about your safety and your children’s safety first — get legal advice.
When leaving your home you can legally take anything you own individually or that you own with another person. You should take personal documents, such as:
- bank and cheque books.
- credit and debit cards.
- financial statements.
- tax returns.
- personal identification.
- marriage certificate.
- items of sentimental value.
- items you and your children may need if they are going with you.
You can take your children with you, but you should make sure you consider what is in their best interests. This includes giving them the benefit of both parents’ meaningful involvement in their lives and making sure they are protected from physical or psychological harm.
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