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What separation actually means
Separation is a question of fact, not paperwork. You are separated from the day one of you communicates that the relationship is over and acts on it. There is no form to lodge, no court involvement, and nothing to register.
You do not both have to agree. One person can separate unilaterally, and the relationship is over from that point whether the other accepts it or not.
The date matters more than most people expect. It starts the clock on divorce eligibility, it sets the deadline for de facto property claims, and it becomes the reference point for assessing contributions. Write it down while it is fresh, along with how it was communicated.
The first month
Do these early
- Record the separation date and how it was communicated.
- Gather financial records — bank statements, super balances, loan documents, tax returns. This is far easier now than later.
- Get advice before you move out, transfer money, or sign anything.
- Update your will and your enduring power of attorney. If you were married, separation revokes neither.
- Check your superannuation nomination. It may still name your former partner.
Moving out does not forfeit your interest in the home, but it can affect practical arrangements for children and it is harder to reverse than to get right the first time. Emptying a joint account is almost always counterproductive: it will be accounted for in the settlement and it damages your position in every negotiation that follows.
Separation under one roof
You can be separated while still living in the same house, and many people are — usually for financial reasons or for the children. The law recognises it, but the court will want evidence, because the fact of separation is less obvious from the outside.
Evidence typically includes sleeping in separate rooms, ending the sexual relationship, separating finances, no longer performing domestic tasks for each other, reduced shared social activity, and telling family, friends or government agencies. For a divorce application relying on separation under one roof, you will generally need an affidavit from you and one from an independent person who can confirm the change.
Applying for divorce
Divorce ends the marriage. It does not divide property or decide arrangements for children — those are entirely separate processes, and both can be dealt with before you ever apply.
Australia has no-fault divorce. The only ground is that the marriage has broken down irretrievably, demonstrated by 12 months of separation. Nobody has to prove why, and conduct is irrelevant to whether the divorce is granted.
- Separated 12 months and one day before applying
- Apply jointly, or on your own
- Filed electronically through the Commonwealth Courts Portal
- A sole application must be served on your spouse
- Court fees are set by regulation, with a reduced fee available
- Most applications are decided without you attending
Where there are children under 18, the court must be satisfied that proper arrangements have been made for them. This is not an assessment of who should have care — it is a check that arrangements exist.
When the divorce takes effect
A divorce order generally takes effect one month and one day after it is made. Until then you are not divorced and cannot remarry. Once it takes effect, two things follow that people frequently overlook.
First, your will is affected: divorce generally revokes gifts to a former spouse and their appointment as executor. Second, and more urgently, the property clock starts.
Divorce starts a 12-month property deadline
Once your divorce order takes effect, you have 12 months to start property settlement or spousal maintenance proceedings. After that you need the court's permission, which for property is generally granted only where hardship would otherwise result.
If you are separated but not divorced, no property deadline is running. There is often no advantage in rushing the divorce, and a real risk in it.
The timing trap
Most people assume divorce is the first step. Legally, it is usually the last. Property settlement and parenting arrangements can be resolved at any time after separation, and resolving them before applying for divorce avoids the 12-month deadline entirely.
The exception is where you want to remarry, or where the finality matters to you personally. Both are legitimate reasons — just make the decision knowing what it triggers, rather than discovering it afterwards.
De facto couples work differently: there is no divorce, and the two-year property deadline runs from separation itself. If you were in a de facto relationship, your clock is already running.
What it costs
Written costs agreement before we start. A divorce application is usually a fixed fee. Property and parenting matters are estimated by stage, because cost depends on how much is disputed.
- Fixed fee for a divorce application
- Court filing fee at cost
- Stage estimates for property and parenting
- Reduced court fee may be available
- Costs agreed with you before we start
- Honest advice on what is worth arguing
Frequently asked questions
Twelve months and one day. Separation is a question of fact rather than paperwork, and it is possible to be separated while living under the same roof, though you will need supporting evidence including an affidavit from an independent person.
No. One person can separate unilaterally. The relationship is over from the point that person communicates the decision and acts on it, whether the other agrees or not.
Yes. The law recognises separation under one roof, and it is common for financial reasons or for the children. Evidence usually includes separate rooms, separated finances, no longer performing domestic tasks for each other, and having told family, friends or government agencies.
No, and usually you should not wait. Property settlement can be resolved at any time after separation. In fact, once a divorce order takes effect a 12-month deadline starts for property proceedings, so resolving property first avoids that deadline entirely.
Generally one month and one day after it is made. Until then you are not divorced and cannot remarry. Once it takes effect, gifts to a former spouse in your will are generally revoked, and the 12-month property settlement deadline begins.
The court must be satisfied that proper arrangements have been made for children under 18 before granting a divorce. This is a check that arrangements exist, not an assessment of who should have care. Parenting arrangements are dealt with separately from the divorce itself.
For married couples, no, and this catches many people. Separation revokes neither your will nor your enduring power of attorney, and your superannuation death benefit nomination may still name your former partner. Divorce revokes gifts to a former spouse in a will, but separation alone does not. In Queensland, the end of a de facto relationship can revoke gifts to a former de facto partner in a will. Either way, update all three.
More information
Separation and all that follows can be overwhelmingly difficult for all concerned. Getting empathetic and expert legal help is essential.
Separation & divorce lawyers Rockhampton
Separation occurs when one person communicates to the other that the relationship is at an end and there is no prospect of reconciliation and they act on that communication. Couples can still be separated even though they maintain the same residence under the one roof.
Separation itself involves no legal process, but there are several significant consequences that flow from the date of separation. Seeking advice prior to, or immediately following, separation is recommended to ensure you protect yourself in navigating your way through property settlement, parenting arrangements and divorce (where applicable).
Divorce is the legal end of a marriage. While some people may be separated for years without actually getting a divorce, it is important to understand that your marital status can affect your legal rights and responsibilities.
Australia has “no-fault” divorce laws. The only grounds for divorce are that you have been separated for 12 months and the marriage has irretrievably broken down with no likelihood of reconciliation.
You can solely apply for a divorce, or jointly with your former spouse. To take the stress out of it and ensure it is done properly, we can advise you on the best approach, draft the documents and represent you in court, if required.
Start your family law matter online — privately and at your own pace
Not quite ready to pick up the phone? You can begin online instead. Answer a few simple questions about your situation in your own time, and our experienced family lawyers will review your details before your first appointment — so your meeting is focused on you, not paperwork.
South Geldard lawyers can also assist with:
- Property Settlements for both married and de facto couples
- Property disputes involving parents and adult children
- Spouse maintenance
- Financial agreements (pre-nups)
- Parenting arrangements
- Child support and Adult Child Maintenance
- Personal protection issues involving domestic violence
- Mediation
- Surrogacy agreements
Flexible Legal Financing for Family Law Matters
South Geldard Lawyers has proudly partnered with JustFund to offer our clients greater financial independence, particularly through family law litigation funding. For some clients, it can be a struggle to afford legal fees and disbursements, and limited access to funding sometimes means the settlement process stalls and clients get stuck. This partnership enables our clients to access the legal assistance they deserve to settle their family law matters and move on with their lives without the burden of immediate financial constraints.
Extensive Experience
Our professional team has extensive experience in a wide range of legal areas. Our approach is one of planning and involvement. We will continue to be there to support you with accurate and timely advice.
This page is general information about the law as it applies in Queensland, current as at 2026. It is not legal advice and does not take your circumstances into account. Figures set by regulation are indexed and change. Speak to one of our lawyers before acting.