Separating: the first three decisions

One: the date of separation

Separation is a question of fact; no form starts the clock, and you can be separated while living under one roof. The date matters because it starts the time limits and because it fixes the pool for the property settlement. Contemporaneous records of the date are important, because separation is later proved by evidence.

Two: understand the time limits

• Married. Property and spousal maintenance proceedings must be started within 12 months of the divorce becoming final: s 44(3) of the Family Law Act 1975 (Cth).
• De facto. Within two years of the end of the relationship: s 44(5).
• Divorce itself. Available after 12 months of separation.

Out of time you need leave of the court, which is discretionary and is not routinely given.

Three: informal property settlements do not bind

A verbal agreement, a bank transfer, or an email exchange is not a property settlement. It does not stop the other party bringing a claim later, it does not attract the transfer duty exemption on transferring the house, and it does not get the capital gains tax rollover. Consent orders and a binding financial agreement do.

Children

There is no time limit on parenting arrangements, and there is no presumption of equal time. Since the 2024 amendments the sole test is the best interests of the child, assessed against the factors in s 60CC. Pre-action procedures, including family dispute resolution and a s 60I certificate, apply before most parenting applications.