Separation Agreement Information
Alternate Names:
A Separation Agreement is also known as a:
- De Facto Separation Agreement
- Financial Agreement
- Legal Separation
- Marriage Separation Agreement
- Separation Form
What is a Separation Agreement?
A Separation Agreement is a contract between two spouses that describes how assets, property, finances, and parenting arrangements will be divided or allocated as the couple prepares to end their marriage or de facto relationship.
Separation Agreements are most often used as evidence to prove when a couple decided to separate or are filed in court to help determine arrangements for property division, spousal maintenance, and child care and guardianship.
Where can I use this Separation Agreement?
LawDepot's do-it-yourself Separation Agreement is tailored to meet the governing laws in Australian states and territories, including:
- Australian Capital Territory (ACT)
- New South Wales (NSW)
- Queensland (QLD)
- South Australia (SA)
- Tasmania (TAS)
- Victoria (VIC)
- Western Australia (WA)
Who can use this Separation Agreement?
Any couple, whether married or in a de facto relationship, can use this Separation Agreement.
A de facto relationship is a relationship in which a couple lives together on a genuine domestic basis though they are not legally married. The couple cannot be related by family.
What is the difference between separation and divorce?
Separation and divorce both involve the break down of a relationship, although there are some key differences.
A separation is when a married couple (or couple in a de facto relationship) decides to live apart and prepares to end their marriage. A separated couple may reconcile and get back together, remain separated indefinitely, or eventually file for divorce.
You and your husband or wife may use a Separation Agreement to manage finances, property, and parenting arrangements, if you can agree on the terms without having to go to court.
A divorce is when a married couple decides to end their marriage legally and permanently. To file for divorce, you must prove to the court that you have been separated for at least 12 months and that reconciling the relationship is unlikely.
Can you file for a divorce without a Separation Agreement?
Yes, you can apply for divorce without a Separation Agreement. However, in Australia, you are required to be separated from your husband or wife for a minimum of 12 months prior to filing for divorce. A Separation Agreement helps to prove and confirm the length of your separation.
A Separation Agreement also helps the court make decisions regarding finances, property, and parenting arrangements. Without one, you may need to seek a lawyer and court orders to reach a fair agreement on these issues.
Can you live in the same house and still be separated?
Yes, it is possible for a you and your husband or wife to be separated while still living under one roof. Spouses may choose to continue living in the same household for many reasons, for instance:
- A spouse may need some time to find a place of their own
- A spouse may be unable to afford to live on their own
- Children may need time to adjust to their parents' separation
If you are still living together at the time of creating your Separation Agreement, you can enter the same address for both parties. If a dispute about your separation ever arises, you can use your Separation Agreement and an Affidavit (a written statement used by a person to list facts they swear are true) to prove you were legitimately separated while sharing a home by providing:
- The reasons why you chose an in-home separation and if you have any intentions of changing the situation
- The details of your physical separation (e.g. divided sleeping arrangements, meal times, household chores, etc.)
- The details of your financial separation (e.g. separating assets, bank accounts, debts, etc.)
Are Separation Agreements legally enforceable?
Yes, a Separation Agreement can be legally enforceable provided:
- Each party received separate, independent legal advice before signing the contract
- A Certificate of Independent Legal Advice from each party is attached to the agreement
- A formal statement of separation is declared at the end of the document
- Both parties signed the agreement, preferably in front of witnesses
- Both parties retained a copy of the agreement
So long as these signing requirements are met, the financial details in a Separation Agreement regarding spousal maintenance (ongoing financial support) and the division of property should be legally enforceable.
However, certain clauses dealing with parenting plans and child maintenance within the Separation Agreement may not be legally enforceable until you take further steps. For instance, you must submit your agreement on child support to the Australian Department of Human Services in order for it to be binding. The clauses on parenting arrangements can prove your agreement in an application to the Family Court of Australia for a parenting order.
In most cases, courts will respect Separation Agreements as long as they are fair, reasonable, and properly executed.
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