About the Author
Charuna Chetty
Published on February 21, 2025
Breaking up is never easy, but when a relationship ends, the legal side of things can feel even more overwhelming. Whether you’re married or in a de facto relationship, you might be wondering whether separation or divorce is the right path for you.
That’s why our family and divorce lawyers have put together this guide—to help you understand the key differences between separation and divorce, what’s involved in each, and how to figure out which option is best for your individual circumstances.
From property settlement to parenting arrangements, we’ll walk you through the legal implications of both choices and what they mean under Australian family law.
Let’s start by unpacking separation—what it actually means and how it affects your legal status.
What is Separation?
Separation occurs when one or both parties in a marriage or de facto relationship decide to end their relationship. Unlike divorce, there’s no formal legal process to separate and you don’t need to file any paperwork to make it official. Instead, it’s simply about deciding to live separate lives, even if that means staying under one roof for practical or financial reasons.
While separation doesn’t change your legal marriage status, it can still have serious legal implications, especially when it comes to property and financial matters, child custody, and pending property settlements. That’s why it’s often a good idea to seek legal advice early to protect your rights and understand how separation could affect your financial settlements and parenting arrangements.
Next, let’s look at the different types of separation and what they might mean for you.
Types of Separation
Separation doesn’t always mean moving into separate residences straight away. In Australia, there are different ways separation can happen, and the type that applies to you can affect things like financial agreements, Centrelink benefits, and even the divorce process later on.
- Living separately – The most straightforward type of separation, where both partners move into separate residences and begin living separate lives.
- Separation under one roof – Some couples remain in the family home for financial or child custody reasons while still being legally separated. This is common when there are children involved or if one party isn’t financially ready to move out.
- Trial separation – Some couples take time apart without making a final decision. While this isn’t a legal separation, it can help couples decide whether to reconcile or move toward a more formal split.
Regardless of the type of separation, it’s important to document the separation date, especially if you plan to finalise pending property settlements or apply for divorce later.
Now, let’s talk about why separation can be a better option for some people.
Benefits of Separation
For some couples, separation is a better option than jumping straight into divorce proceedings. It provides time and space to figure out what’s best for your future—whether that’s working things out or moving toward a more permanent split.
Some key benefits of legal separation include:
- Time for personal growth – A trial separation can give both partners clarity on whether they truly want to end their relationship or if reconciliation is possible.
- Financial considerations – Remaining legally separated but still married can sometimes provide certain financial benefits, like retaining access to tax benefits, private health insurance, or Centrelink support.
- Less immediate stress – Avoiding the formal legal process of divorce means less paperwork and fewer legal fees in the short term.
- Stability for children – If there are children involved, taking things slowly through separation instead of rushing into divorce can make the transition easier.
- No impact on property settlement – You don’t have to be divorced to divide assets. A Binding Financial Agreement or other legal arrangement can help sort out property and financial matters without finalising the marriage.
That said, separation isn’t the right choice for everyone. Let’s go over what divorce means and when it might be the better option.
What is Divorce?
Divorce is the formal legal process of ending a legal marriage. Unlike separation, which happens as soon as one or both parties decide to live separate lives, divorce requires an application to the Federal Circuit and Family Court of Australia and must meet certain legal requirements.
In Australia, the law follows a no-fault divorce system, meaning the court doesn’t consider why the marriage ended. Instead, the only requirement is that the relationship has broken down irretrievably, proven by at least 12 months of separation. If a couple has been married for less than two years, they may also need to attend family dispute resolution (a type of mediation) before applying.
It’s important to note that getting a divorce order only ends the legal marriage but it doesn’t automatically sort out property settlement, financial agreements, or parenting arrangements. That’s why many couples seek legal advice to ensure their financial and family law matters are properly handled.
Next, let’s take a look at the legal implications of divorce and what it means for things like property, finances, and children.
Legal Implications of Divorce
Divorce isn’t just about ending a legal marriage—it can have significant legal implications for property and financial matters, child custody, and even future financial decisions. Here’s what you need to consider:
- Property settlement – Divorce doesn’t automatically divide assets. Couples need to come to an agreement or apply to the Family Court for a property settlement within 12 months of the divorce order being granted.
- Parenting arrangements – A divorce order doesn’t determine where children will live or how parenting arrangements will work. Parents must either agree on a plan or apply for parenting orders through the court if needed.
- Wills and financial agreements – Divorce can void parts of a will and impact things like superannuation, insurance policies, and financial agreements. It’s crucial to update your legal documents after a divorce to protect your interests.
- Financial benefits and obligations – Divorce can affect Centrelink payments, tax benefits, and financial settlements, so it’s important to understand how these changes may impact your situation.
Because the divorce process can be complex, many people choose to seek legal advice from an experienced family lawyer to ensure they don’t overlook important legal and financial considerations.
Next, let’s explore some of the benefits of divorce and why it may be the right choice for some people.
Benefits of Divorce
While divorce can feel overwhelming, it can also bring positive changes—especially when staying in the marriage is no longer healthy or practical. Some of the key benefits of divorce proceedings include:
- Legal and financial independence – A divorce order allows both parties to fully move on, making it easier to separate finances, divide assets, and formalise property settlement arrangements.
- Emotional closure – Ending a legal marriage can provide a sense of finality, helping people focus on their future rather than remaining tied to the past.
- Freedom to remarry – You can’t remarry unless you’ve officially finalised your divorce.
- Clarity for children involved – In some cases, a clear break allows parents to create structured parenting arrangements that reduce conflict and provide stability for children.
- Long-term financial benefits – While staying married may provide certain financial benefits in the short term, being legally divorced can simplify future financial settlements, inheritance matters, and tax implications.
Ultimately, choosing separation or divorce depends on what’s best for your individual circumstances.
Difference Between Divorce and Separation
While separation and divorce are often mentioned together, they are very different in terms of legal status, financial implications, and long-term outcomes.
- Legal status – Separation occurs when a couple decides to end their relationship, but they remain legally married. Divorce is the formal legal process that dissolves a legal marriage.
- Financial implications – Separated couples can finalise pending property settlements and make financial agreements, but they are still legally tied in areas like tax and superannuation until they divorce.
- Parenting and custody – Parenting arrangements can be sorted out at any stage, whether a couple is separated or divorced. A divorce order does not automatically determine child custody.
- Ability to remarry – A couple can be separated indefinitely, but to remarry, they must legally finalise their divorce.
Some people choose to remain legally separated without divorcing due to financial considerations, religious beliefs, or personal reasons. Others prefer to complete the entire process of divorce for closure and independence.
Pros and Cons of Separation vs Divorce
Deciding between separation and divorce isn’t always straightforward. Both options come with their own legal, financial, and emotional considerations.
Pros of Separation
- More flexibility – Couples can take time to decide their next steps without rushing into the divorce process.
- Financial benefits – Remaining legally separated may allow access to Centrelink benefits, tax benefits, or shared assets like private health insurance.
- Easier transition for children involved – Parenting arrangements may feel less disruptive when parents separate gradually rather than going straight to divorce proceedings.
Cons of Separation
- No legal closure – Even if you live separate lives, you are still legally married. This means you may need to consider property and financial matters carefully.
- Potential complications with finances – Staying married can complicate financial settlements, wills, and inheritance rights.
Pros of Divorce
- Legal and financial independence – A divorce order allows both people to move forward, separate finances, and protect their assets.
- Clarity and closure – Emotionally, divorce proceedings can provide a fresh start.
- Ability to remarry – If either party wants to remarry in the future, a divorce is necessary.
Cons of Divorce
- More legal steps – Unlike separation, divorce requires going through a formal legal process, which includes applying to the Family Court.
- Financial costs – Legal fees and potential financial settlements can make divorce more expensive than staying legally separated.
The best option depends on your individual circumstances and that’s something we can help you to understand.
How to Decide Between Separation and Divorce
Choosing between separation and divorce depends on your personal, financial, and legal situation. While there’s no straightforward divorce or separation checklist to help you choose, we’ve listed some circumstances when separation or divorce may be better. Some people benefit from remaining married; others find that divorce proceedings provide the closure they need.
When is Separation a Better Option?
- If you’re unsure about ending the relationship – A trial separation gives time for reflection without the finality of divorce.
- For financial or practical reasons – Some couples stay legally separated to retain certain financial benefits, like private health insurance or tax benefits.
- If you’re not ready for the formal legal process – Divorce requires filing a divorce application and following legal steps, which some people prefer to delay.
When is Divorce a Better Option?
- If you want complete legal and financial independence – A divorce order allows you to separate finances and settle property and financial matters permanently.
- If there’s no chance of reconciliation – If both parties are certain the relationship is over, divorce provides legal closure.
- If you want to remarry – To legally remarry, you must have finalised your divorce.
Deciding what’s right for you can be complicated. That’s why many people seek legal advice from an experienced family lawyer to understand their options and rights under Australian family law.
FAQs
Here are some of the most common questions people have about separation and divorce in Australia.
Can I be legally separated while living under the same roof?
Yes. You don’t have to live in separate residences to be considered legally separated. Couples can continue living in the family home due to financial considerations or for the sake of any children involved. However, if you later apply for a divorce order, you may need to provide evidence that you were genuinely living separate lives.
Do I need to file paperwork for separation?
No. Unlike divorce, there’s no preparation for separation in terms of paperwork, rather it occurs as soon as one or both parties decide to end the relationship. However, it’s a good idea to document the separation date, especially for things like Centrelink benefits, financial settlements, and if you plan to finalise pending property settlements later.
Does separation affect property settlement?
Yes. A property settlement can be arranged while you are legally separated, even if you don’t proceed with divorce proceedings. Many couples create a Binding Financial Agreement to formalise their property and financial matters.
How long do I have to be separated before I can get divorced?
You must be separated for at least 12 months before applying for a divorce order. If you’ve been married for less than two years, you may also need to attend family dispute resolution before filing a divorce application.
What happens if one party doesn’t want a divorce?
Australia has a no-fault divorce system, meaning you don’t need your ex-partner to agree. As long as you can prove 12 months of separation, you can apply for a divorce order on your own.
If you have more questions about separation and divorce, it’s always best to seek legal advice from an experienced family lawyer, like us here at Unified Lawyers.
How Unified Lawyers Can Help
Navigating separation and divorce can be overwhelming, especially when it comes to property settlement, parenting arrangements, and understanding your rights under Australian family law. That’s where our team of experienced family lawyers can help.
At Unified Lawyers, we provide clear, compassionate guidance tailored to your individual circumstances. Whether you’re considering a trial separation, need assistance with a divorce application, or want to protect your assets with a Binding Financial Agreement, we’re here to support you every step of the way.
If you’re unsure about your next steps, we recommend seeking legal advice early to avoid complications down the track. Contact us today for a free and confidential consultation, and let’s find the best path forward for you.
You can book your consultation by calling us on 1300 667 461 or booking online using the button below.
Published on February 21, 2025
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