Separation & Divorce

Make your best start in the separation process by getting ahead of important decisions early on, in the right frame of mind and armed with expert advice.

Our Specialist Family Lawyers will listen to what you want to achieve in your separation and use their expert legal skills to get you there.

Navigating a relationship breakdown is difficult and making sure you take all the right steps at the right time can seem impossible. Our Mission is to secure the best future for every client and their family. We do this by:

  • Providing clear and realistic advice.
  • Providing direct access to a highly capable team.
  • Delivering an exceptional and personalised service.
  • Focusing on practical resolutions.

We want you to make the very best start in this process; to get ahead of important decisions early on, in the right frame of mind and armed with expert advice.

After years of working with people experiencing separation, we know how important it is to start the separation process in a strong, informed and clear-minded place – we call this making a Smart Start.

To make sure you make a Smart Start, we have developed our Smart Start Appointment – the clearest, fastest and smartest start to your separation journey.

The difference between Separation and Divorce

There is a distinction between the legal meaning of separation and the legal meaning of Divorce which is important to understand. It is also important to know that a Divorce and/or separation does not mean the division of assets (which is known as a Property Division or Settlement).

The date of a legal separation can be relevant not only to Divorce, but also to Property Division, Spousal Maintenance, Child Support and Centrelink benefits. The date of a Divorce can be relevant to Property Division, Spousal Maintenance, Remarriage, the effect of a Will or Superannuation Death Benefits nomination.

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Under Australian Family Law, separation is the act of ending a marriage or de facto relationship. The following are required for separation to occur:

  • There is a decision made by one (1) of the parties to a relationship to end that relationship (the decision need not be mutual),
  • The person communicates their decision to the other person in the relationship, and
  • The parties physically separate (either to separate residences or under the one (1) roof).

Quite often the date of separation is easy to determine as the decision to end the relationship is clearly communicated followed by one (1) party moving out of a shared residence.

Sometimes, separation can be difficult to establish because the decision to end the relationship has not been clearly communicated on a particular date. Also, due to financial constraints, children or other factors, after separation the parties may continue to live together under the one (1) roof. In these cases, the date of separation can usually still be established by examining the day-to-day lives of the parties to determine whether the couple has actually separated. These include:

  • Whether the parties shared a room or slept in separate rooms after the alleged date of separation,
  • Whether the parties separated the conduct of their financial affairs,
  • Whether parties performed domestic duties together or separately such as cleaning and washing for each other,
  • Whether or not either of the parties lodged or signed any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single person, as opposed to a person in a relationship,
  • Whether or not the parties continued to be intimate, and
  • Whether it was known in general society (such as by telling friends and family), that the parties had separated.

Date of Separation

The date of separation is important as there are important timeframes which are determined by the date of separation. These include:

To obtain a Divorce Order, it must be established that there has been irretrievable breakdown of the relationship by the separation of the parties for at least 12 months prior to making an Application for Divorce. If the parties cannot prove that they have been separated for 12 months, they will have to wait until this can be proven to apply for a Divorce.

If the parties are not married, there are also important consequences of the date of separation for de facto couples:

  • Generally, a person who has been in a de facto relationship cannot seek a Property Division and/or Spousal Maintenance unless they can prove the relationship lasted two (2) years or more, and
  • Where the de facto relationship has lasted at least two (2) years, a person has a 2-year time limit from the date of separation to seek a Property Division and/or Spousal Maintenance.

The date of separation can be important whether in a de facto relationship or a marriage during a Property Division as:

  • Any property or debts accumulated by a party after separation are usually treated differently to property or debts accumulated before separation,
  • Child Support is payable only after separation, and
  • A person’s entitlement to Centrelink and Medicare benefits can change as a result of separation.

Separation requires no legal processes or documentation. You cannot register a Separation, but you may need to inform agencies such as Medicare, Centrelink and the Child Support Agency that you have separated.

Your decision – Legal Separation or Divorce?

Separated couples do not have to Divorce, but you should consult a Specialist Family Lawyer to understand the legal implications of remaining married. Whether you choose to remain separated without being divorced or whether you get a Divorce once you have been separated for 12 months is your choice (except when your ex-partner has sought a Divorce and it is granted, despite your wishes).

Couples may elect to formalise their Property Settlement and Parenting Arrangements after Separation but remain married. If you do this, then you are not able to remarry. The best choice for you may be based on several factors including a new relationship, financial or taxation considerations, matters in relation to your Will and Estate Planning or religious reasons. Your Family Lawyer will guide you through the factors you need to consider in your circumstances.

Feel the empowerment
of knowing where you
stand at an early stage.

Fixed Fee Smart Start Appointment

Your Smart Start Family Lawyer will answer all your questions, explain the law and legal processes, provide on-the-spot tailored advice and help you develop a plan for moving forward.

$350 incl. GST 90-Minute Consultation


Divorce is the formal legal ending of a marriage and often follows on from a separation. Divorce is separate and distinct from Property Division and Parenting Arrangements after Separation.

In relation to a marriage, it is not essential that separation leads to Divorce. In fact, the only thing a person absolutely cannot do until their Divorce Order is final is to get remarried. However, they can still divide property, claim Cchild Ssupport, change their name, enter a new de facto relationship and so on without being divorced.

Since 1975, we have had a “no fault” Divorce system in Australia. This means that for a couple to Divorce, there is no requirement that a spouse prove that the other spouse has breached the marriage contract and is at fault for the breakdown of the marriage. There is also no advantage for the spouse who has not caused the breakdown of the marriage in that they get a better outcome in property division or parenting arrangements because they have not caused the breakdown of the relationship. The actions of one (1) or the other spouse in the breakdown of the relationship are not considered by the Court.

To obtain a Divorce, you must prove that your marriage has irretrievably broken down. The only thing you need to show to prove that your marriage has irretrievably broken down is that you have been separated for at least 12 months at the time of making the Application for Divorce. Your separation will be assessed based upon the facts of your particular situation as set out here.

A Divorce can be obtained by only one (1) spouse, even if the other spouse objects.

If you need a Divorce,
why do it any other way?

Fixed Fee Application for Divorce

Our fixed fees vary depending on whether the Divorce Application is made by one spouse or both spouses jointly and whether there are children under 18 years old.
Call now to discuss our fixed fee for your circumstances.

From $1,740 incl. GST

Making an Application for Divorce

Completing the Application form

To make an Application for Divorce, you must complete and sign an Application for Divorce form. You must have been separated for at least 12 months at the time of signing the Application for Divorce. You can make your Application with or without your ex. If there are children of the marriage who are under 18 years, you are required to outline the details of arrangements for them in the Application for Divorce.

Your Application for Divorce must then be filed in the Federal Circuit and Family Court of Australia. Your Application may be filed online via the Commonwealth Courts Portal where you can register as a new user and upload the Application for Divorce. Once the Court has received your Application online, they will mark it with the date, the Court seal and the date of your Divorce hearing.

The Court date for the hearing of your Application for Divorce will usually be approximately six (6) weeks from the date of filing the Application for Divorce. In this time, if you have made a sole Application, you need to serve the sealed Application for Divorce on the other spouse. Service must occur at least 28 days before the Court date (if your spouse is in Australia) or at least 42 days before the Court date (if the your spouse is overseas).

Attending Court

You must attend Court for the hearing of your Application for Divorce if:

  • You have indicated on the Application form that you wish to attend Court, and/or
  • You have children under 18 years and have made a sole Application for Divorce.

The Court hearing will most likely be with a Registrar and will occur electronically via an audio-visual link that will be provided to you in an email from the Court. During the Court hearing, the Registrar will either make the Divorce Order, adjourn your Application or dismiss your Application.

If a Divorce Order is made at the hearing, it will not become final until one (1) month and one (1) day after the date of the Order.

The effect of resuming cohabitation

If you and your ex-partner decide to start living together again in an effort to reconcile, the period during which you have resumed cohabitation will have an effect on the duration of your separation for the purposes of an Application for Divorce. After resuming cohabitation, you ultimately separate and wish to Divorce, the resumption of cohabitation will have an impact on your ability to prove 12 months’ of separation.

If you have resumed cohabitation on only one (1) occasion after the initial separation and you separate again within three (3) months of resuming cohabitation, you are permitted to include the period since the first separation in calculating the 12 months’ separation (provided you exclude the duration of the resumption of cohabitation). If your resumption of cohabitation was three (3) months or longer, you cannot include the duration of the initial period of separation.

Remarriage after Divorce

You should avoid plans to remarry until after a Divorce Order becomes final or your plans for remarriage may have to be delayed.

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I would highly recommend their services to anyone needing to navigate the family law process.

A big thank you to Monique Allan and all of the team at Delaney Roberts for all of their efforts to provide us with expert help and advice in a very difficult time. Monique is extremely dedicated and put in significant effort to lead us through the legal framework in order to achieve the best possible results.

Maddie Allan

When I had my appointment at Delaney Roberts, I wasn’t sure what to expect from it, but Jade knew what I needed.

Which was reassurance that I was doing the right thing and heading in the right direction. She listened and understood me and my worries and provided such great advice. I’m so thankful to have found her and now have her as my lawyer. She makes me feel confident we will be able to process and handle anything that arises in the future!

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Your professionalism, patience and understanding during my many enquiries was truly appreciated.

Thank you Eleni for your integrity, support and expertise while dealing with my matter. Many thanks also for your excellent work on my behalf. I always felt I was in good hands. I would not hesitate to recommend you to my family and friends.


I like to thank you very much for your assistance and support during this period. Very much appreciate all you have done.


From my perspective you are light years ahead of the competition. It is so good to see a professional with such great customer service, who can communicate in a calm clear manner, especially when I am and usually a bit emotional.

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Anna made me feel like I was in control.

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Peter M

I recommend Jade Coshaw and Delaney Roberts to anyone I know that requires Family Law representation.

“Following the breakdown of my marriage I was recommended to Delaney Roberts so made an initial appointment. From the outset Jade has acted with the most sound judgment and unfaltering responsibility towards my case and this combined with her extensive knowledge of Family Law meant she was able to fully explain the different options available to me, providing both the pros and cons of each option, in an attempt to bring the matter to conclusion resulting in a solution that provides the best possible outcome for all those involved, most importantly my children.

Jade has kept me constantly informed throughout the proceedings, even contacting me out of her normal working hours on occasion, ensuring I was never in any doubt as to the progress of my matter.

In summary of Jade’s actions, she has been compassionate, understanding, patient and honest with me. She has been my advisor and confidant. Fighting my legal battles for me, shouldering all the stress and shielded me from harm. She has taken my peculiar circumstances and directed them in such a way, that the outcome can only be described as superior. All attributes that will ensure I will recommend Jade Coshaw’s name and the legal firm of Delaney Roberts to anybody I know that find themselves in a similar situation where they require family law representation. I see Jade as a true advocate and carer of those who are in need and believe her kindness will be rewarded.”

Kate Palmer

Clare was informative, responsive and attentive to my needs and always actioned what she said she would.

“After an average experience with a previous lawyer, I was humbled by Clare’s assistance in my Family Law matter. I would recommend Delaney Roberts.”

Geraldine Williams

I’m so appreciative of the support, guidance and legal advice Monique Allan has provided for my family law matter.

“Thank you Monique and Jill. Monique has worked with me through some stressful situations and I highly recommend her not only for her knowledge and expertise, but also for her calm and fair approach during a difficult time.”

Jason Pepper

Linsey was able to help me navigate this unknown territory resulting in a fair and reasonable outcome.

“My solicitor Linsey and the team at Delaney Roberts have been highly professional and supportive throughout my family law matter. Thanks again Team!”

Aaron Rogers

I have no hesitation in recommending Delaney Roberts and their excellent services. I dealt with Clare McAteer and found that she made complex issues easy to understand.

Brooke Harrison

I can’t recommend Clare and the Delaney Roberts team more! Thank you Clare, you are amazing!

“Clare was incredibly helpful and supportive during my consultation. Clare was able to see me at a moment notice to assist me with my difficult separation. Clare was professional, courteous and kind and definitely made me feel much more at ease regarding the process.”

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Couldn’t recommend Jade any higher so professional and has so much knowledge, she’s quick and to the point and so easy to deal with goes beyond to help you and work around your needs will definitely continue using Jade.

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I had the pleaser of have Clare McAteer as my Lawyer for my Divorce settlement. I found her very professional and very informative with the process and how legal system works.

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Clare’s knowledge is unrivalled, her bubbly personality reassured me from the start.

“It’s with a heavy heart I wrote this review because it means my journey with Clare and Bianca is over. I met the girls during a very difficult time in my life and they were the light helping me navigate through. Bianca was always available to answer any question no matter how random or silly it was. This dynamic duo are the people you want in your corner, they go above and beyond and surpassed my wildest expectations. I hope I never have to use their service again but if I do they’ll be the first people I call on. I love you girls so much, you’re become part of my tribe and you laugh at my jokes what more could someone ask for.”

Chantelle Palmer

Delaney Roberts went above and beyond. Jade is highly efficient and worked to get results as quickly as possible while leaving no stone unturned.

“Navigating family law can feel overwhelming, emotional and confusing
however having a lawyer you can trust that shows compassion, extensive knowledge and clear judgement goes a long way to make the process as stress free as possible and Jade and Jill from Delaney Roberts went above and beyond. Jade is highly efficient and worked to get results as quickly as possible while leaving no stone unturned and both Jade and Jill were always available to answer any questions along the way & keep me in the loop. I hope to never find myself in this situation again but if I did, I would want Jade on my side again. Huge thank you again for all your hard work & giving me the best possible outcome!”

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Clare was caring, very professional and provided a complete picture of my alternatives highlighting the advantages and disadvantages.

“I had a wonderful experience receiving advice from Clare at Delaney Roberts. I strongly recommend giving them a call if you need a Family Lawyer.”

We have more Accredited Specialists in Family Law than 99% of all law firms in NSW.

Frequently Asked Questions

What is an Initiating Application?

Family Court proceedings are commenced by using an Initiating Application form. An Initiating Application contains details of your matter including the interim and final Orders that you are seeking.

What should I do if I am served with an Initiating Application?

Contact us as soon as possible to discuss your circumstances and make an appointment to see one of our Family Law Lawyers.

You will be required to attend Court on the date stamped at the top right hand corner of the Application.

You will also be required to file a Response and Affidavit and serve a copy on the other party at least 7 days before the first Court date. Any information set out in your Response and Affidavit can be used in future Court hearings.

How long do I have to be living with someone before I am classified as their de facto partner?

Most people presume that unless you have lived together for 2 years you are not a de facto couple. This is not true. Living together is only 1 of 9 factors the Court considers when determining whether parties have been in a de facto relationship. Other factors include, the length of cohabitation, if the parties are registered as a de facto couple, if they have a child together and if they have shared finances.

For example, if you have a child together and have been together for less than 2 years you will be considered a de facto couple under the Family Law Act.

Who Gets to Stay in the Family Home After Separation?

Technically, the person who is legally entitled to the home is the home owner or the tenant on the Residential Tenancy Agreement. If both parties are jointly entitled to the home, then both parties are legally entitled to stay in the property after separation.

Both parties may then choose to live in the property together and be “separated under the one roof”. However, this arrangement can be difficult and stressful, so one person will generally live in the home alone, by agreement or by obtaining a Court Order for exclusive occupation of the home.

Who Pays for Which Expenses After Separation?

Legally each person has to continue to pay the debts in their name (including one-half of joint debts) until there is agreement or Court Order changing this. It is, however, not uncommon for one party to refuse pay their half of joint debts to put pressure on the other party to pay them, or risk default.

If you are unable to meet your reasonable needs, you should seek advice in relation to making an Application for Spousal Maintenance.

If there is any dispute about Child Support, an Application should be made to the Child Support Agency for an assessment of Child Support required to be paid by one parent to the other.

Is it necessary to go to Court?

Often it is not necessary to go to Court. Many separated couples reach agreement by themselves or with the help of Family Lawyers without going to Court. There are processes including Negotiation, Mediation and Arbitration which help to resolve disputes between couples without the need for Court.

Timeframes for Family Law Applications

How long do I need to wait to apply for:

  • Divorce – 12 months and one day after separation.
  • Parenting Orders – immediately after separation, though keep in mind that unless you are exempt, there is an obligation on parents to attempt to participate in Mediation prior to bringing an application to the Court.
  • Property Division – immediately after separation.
  • Spousal Maintenance – immediately after separation.
  • Child Support and Centrelink – immediately after separation
What should I keep private from my ex-partner after separation?

You may be disadvantaged if your ex-partner is able to access your information and finances after separation. As soon as possible after separation, you should take the following steps to ensure your privacy and accountsess are protected as much as possible:

  • Change your password for your email account(s) (or create a new email account for sensitive correspondence about your Family Law matter),
  • Change your password for online access to your bank account(s) and social media accounts, including Facebook, LinkedIn, Twitter and Instagram, and consider blocking/limiting content available,
  • Ensure that any joint bank accounts, loans, credit sources, memberships, etc. require joint signatures/approval from both you and your ex-partner for any benefits to be accessed or changes to be made, and
  • Ensure that schools, childcare and/or extra-curricular activity providers have been informed of your separation.
How can I access funds and reduce expenses after separation?

Where your ex-partner earns or has more money than you, you may be able to get access to additional funds from them, for a few months after separation or longer term. This might be in the form of:

Spousal Maintenance: a periodic or lump sum payment from the partner with more money to the partner with less money to assist with their costs of living.

Litigation funding: a payment from the partner with more money to the partner with less money to assist with legal fees.

Child support: a periodic payment from one parent to the other to assist with the costs of child/ren. The amount payable is assessed by the Child Support Agency based on a number of factors including how much money each parent earns and how many nights the child/ren spend with them.

You can also minimise your expenses after separation by:

  • Not paying any bills unless you are named on them,
  • Making sure that you pay only your half of bills in joint names, and
  • Staying in the home you own rather than leaving for a rental property.
When Can I Get a Divorce?

If you have been living separately and apart from your spouse for a continuous period of not less than 12 months, you can make an application for a divorce.

If you have been living with your spouse, but separated under the one roof, you can still apply for a divorce if it has been not less than 12 months since you, or your husband/wife, communicated and acted on an intention to separate. The breakdown of the relationship must have been substantial.

Can My Ex-Partner Resist a Divorce Application?

The sole ground for Divorce in Australia is ‘irretrievable breakdown’ of the marriage. This is proven by the parties to a marriage being separated and living separately and apart for a continuous period of not less than 12 months. So your ex-spouse can argue about when you separated however they cannot argue that the divorce shouldn’t be made because they want to remain married.

How Long Does it Take to Get a Divorce?

If you file a joint application with your spouse, your Divorce hearing will be listed at least 28 days after the date of filing.

A sole application (i.e. where the application isn’t filed by both parties to the marriage) will be listed at least 42 days after filing if the respondent is in Australia and at least 56 days after filing if the respondent is not in Australia.

If the application is not made jointly, you will need to prove to the Court that the respondent has been served with a copy of the application. If service has not been effected, the Court will be unable to make the Divorce Order and the matter will be adjourned to allow you to properly serve the other party.

The Divorce Order will take effect one month and one day after the Order is made.

Does Getting a Divorce Also Divide our Property?

No, a Property Division must be dealt with separately from Divorce. However, a Divorce Order triggers the limitation period for applying to the Court for Property Division Orders.

How Much Does it Cost to Get a Divorce?

We offer a Fixed Fee Application for Divorce package, find out more here.

Example Scenario

Luke and Laura are married and, after a difficult period in their relationship, decide to separate. After three (3) months apart, they try to get back together again, moving into the same house. Things don’t work out and, after six (6) weeks, they separate again and this time with finality.

12 months after their initial separation, Luke wants to get a Divorce. As Luke and Laura did not resume cohabitation for three (3) months or more, Luke can use the date of the initial separation to start counting the 12 months’ separation required for Divorce, however, he must factor in the six (6) weeks of resumption of cohabitation. Therefore, Luke can make an Application for Divorce 12 months and six (6) weeks after the initial separation.