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 ProductLink code="AFFGEN" text="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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Separation Agreement

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FINANCIAL AGREEMENT

THIS FINANCIAL AGREEMENT (the "Agreement") is made and entered into on ____ ________________ ________, between the following parties (the "Parties").

BETWEEN:

______________________
of ______________________

OF THE FIRST PART

- and -

______________________
of ______________________

OF THE SECOND PART

BACKGROUND:

The Parties were lawfully married on 20 March 2023, at __________
The effective date of separation is 20 March 2023.
This Agreement is made under Section 90C of the Family Law Act 1975.
There are presently no minor children of the relationship. All children born to the relationship or adopted by the Parties, are adults over the age of majority, self-supporting and emancipated.
Due to certain differences that have developed between the Parties, they agree to live separate and apart from each other, subject to the terms and conditions in this Agreement.
The Parties have made complete, fair and accurate disclosure to each other on all financial matters reflected in this Agreement. The Parties are each satisfied with the degree of disclosure made as to the other Parties' assets and liabilities. Neither party needs or wants further information. Each party states that he or she fully understands his or her rights and liabilities in relation to the other, and the other's assets, liabilities and income.
The Parties intend this Agreement to be a final settlement of the Parties' rights to their relationship or joint property and, subject to any required Court approval, the issue of child and spousal/partner support, if any, as the case may be.
Both Parties are voluntarily entering into this Agreement, and neither has been forced by the other party, or anyone else, to sign it.
The terms of this Agreement are intended to settle the matters addressed and may be incorporated into a final Court Order, unless specific matters are amended or addressed in a subsequent Financial Agreement.
The Parties have each consulted an attorney with regards to his or her legal rights arising out of the matrimonial relationship and the terms of this agreement.
The Parties have each voluntarily entered into this Agreement and have not been forced by anyone to sign this Agreement, and both Parties confirm and state that they are in sound mental health and know of no reason as to why they are not competent to sign this Agreement.

IN CONSIDERATION OF the mutual promises exchanged in this document, the Parties agree as follows:

PART I - DISSOLUTION
Effective Upon Signing
This Agreement shall become effective immediately upon signing by the Parties, but nothing in this Agreement shall prevent the Parties from defending any actions which have been commenced by the one party against the other party to this Agreement.
Living Separate and Apart
The Parties may, at all times hereafter, live separate and apart from the other, as if each were unmarried, and may reside in such place or places, and in such manner as each shall think fit. Neither will at any time, require the other to live with him or her, and will not, in any way, molest, annoy, disturb or interfere with the other in his or her manner of living or otherwise, or interfere in any manner with his or her associates or friends.
Neither party shall by any act, omission, remark, comment, innuendo, or in any way whatsoever, attempt to influence the other party, nor anyone else, in the opinion that they hold of such lifestyle, friends and acquaintances as their spouse may choose for him or herself.
PART IV - SPOUSAL MAINTENANCE
Neither party claims entitlement to spousal maintenance at this time. Both Parties waive any claim to spousal maintenance during the separation, regardless of the length of the period of separation.
PART V - MATRIMONIAL PROPERTY DIVISION
Income
______________________'s total annual employment income is $_____________ AUD. ______________________ has no other source of income.
______________________'s total annual employment income is $_____________ AUD. ______________________ has no other source of income.
Matrimonial Home
The address of the matrimonial home is: _________________________ and is owned by the Parties and will be dealt with as follows:
1. The Matrimonial Home shall be sold and the proceeds divided equally. ______________________ will reside in and have temporary possession of the matrimonial home until it is sold.
2. The expenses relating to the matrimonial home, including but not limited to, upkeep, mortgage payments, utility bills, property taxes, and repair costs, will be paid by ______________________
Assets
The Parties acknowledge that they have agreed upon a division of all assets, owned or possessed by them as matrimonial property or separate property. The Parties are in possession of all of those assets to which he or she is respectively entitled. Accordingly, neither makes any claim to any assets in the possession of the other.
For greater clarification, the Parties hereby relinquish all rights to their interest in furniture or other household effects presently in the possession of the other, and that the other is the absolute owner of them, with the exception of items that the Parties have agreed upon to divide. The Parties further agree that, except as otherwise stated in this Agreement, all of the property:

a. Now owned or possessed by either party; or

b. Which either of them may acquire in the future, shall be deemed to be the property of the person possessing it, and the other party shall have no claim to it, or against it.
Debts
The Parties agree that any indebtedness secured against, or attributable to, any item of property that either party is receiving under this Agreement will be the sole responsibility of the party receiving the particular property.
Any debt incurred by either party after their separation on 20 March 2023 shall be paid by the party incurring that debt, and in the event the other is required to pay it, the party incurring the debt shall indemnify the other for all losses or expenses so incurred, including legal fees on a solicitor/client basis.
For the purposes of clarification only, the Parties acknowledge and agree that, unless otherwise stated in this Agreement, any indebtedness secured against any assets that either party is receiving under this Agreement shall be the sole responsibility of the party receiving the particular asset.
After the execution of this Agreement:

a. Each party shall be solely responsible for any loans or debts in his or her name;

b. Neither shall borrow money or incur any debt for which the other would be responsible; and

c. In the event one of the Parties is required to pay a debt incurred by the other, the party who incurred the debt shall repay the other.
Administration of Estates
Subject to any other agreement as between the Parties, the Parties relinquish any right or interest of any kind that either might otherwise be or become entitled to claim:

a. Against the other's estate; or

b. Against the heirs, executors, administrators or assigns of the other.

This Release is understood by both Parties to be all-inclusive and to terminate rights otherwise arising in relation to the other's estate from the fact of the Parties' relationship in both the common law and legislation.
Testamentary Disposition
Nothing contained in this Agreement shall be interpreted as a waiver by one party of any inheritance that may be left to him or her by the other party in his or her Will or codicil. However, the Parties confirm that neither of them has made any representations or promises to the other of any kind regarding such a gift or inheritance.
GENERAL CLAUSES
This Agreement contains the entire agreement between the Parties. Except as provided elsewhere in this Agreement, this Agreement replaces any earlier written or oral agreement between the Parties.
Notwithstanding that the Parties acknowledge and agree that their circumstances at the execution of this Agreement may change for any reason, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.
Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.
This Agreement shall be interpreted in accordance with the laws of and the property of the Parties shall be governed by it.
Each party acknowledges that he or she has carefully read and reviewed this Agreement and is completely aware, not only of its contents, but also of its legal effect.
Even if there has not been a full disclosure of financial information concerning the assets, liabilities and financial circumstances of each party, each party is satisfied with the extent of the other's disclosure and neither party desire further information prior to executing this Agreement.
The Parties agree to execute any further documentation that may be required from time to time by either party, or their solicitors, to give full effect to the terms of this Agreement. The Parties further agree that they will give to the other all documents, or any and all items, necessary to give full force and effect to the terms of this Agreement.
The obligations and benefits of this Agreement shall be binding upon the Parties and their respective heirs, executors, administrator, successors or assigns.
In the event that a dispute arises regarding this Agreement, the Parties will try to resolve the matter through negotiation or mediation, prior to initiating a court action.
If it becomes necessary for one of the Parties to enforce any term of this Agreement, then the other party shall pay all costs incurred by the other in relation to that enforcement, on a solicitor/client basis.
This Agreement may only be terminated or varied by written agreement between the Parties.
Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
This Agreement may only be varied by written agreement between the Parties. The terms of this Agreement will remain in effect unless the Parties terminate this Agreement in writing and duly signed by both Parties.

IN WITNESS WHEREOF the Parties have duly affixed their signatures on ____ ________________ ________.

_____________________________
Witness (print name and sign)

_____________________________
______________________
______________________

_____________________________
Witness (print name and sign)

_____________________________
______________________
______________________

[ END OF DOCUMENT ]

SEPARATION DECLARATION

I, ______________________, acknowledge and declare that:

______________________ and I were married from 20 March 2023 to 20 March 2023;
______________________ and I separated on 20 March 2023 and are living separate and apart at the time of signing this declaration; and
In my opinion, there is no reasonable likelihood of cohabitation being resumed.

DATED this ________ day of ________________, ________.

_____________________
______________________

SEPARATION DECLARATION

I, ______________________, acknowledge and declare that:

______________________ and I were married from 20 March 2023 to 20 March 2023;
______________________ and I separated on 20 March 2023 and are living separate and apart at the time of signing this declaration; and
In my opinion, there is no reasonable likelihood of cohabitation being resumed.

DATED this ________ day of ________________, ________.

_____________________
______________________

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE STATE OF

I, ________________________, of the City of ___________________, in the State of , Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by ______________________, named in the within instrument, being a Financial Agreement, separate and apart from ______________________, as to ______________________'s legal rights and liabilities under the terms and conditions of the said Financial Agreement, and that I acted solely for them. I explained fully to ______________________ the nature and effect of the said Financial Agreement on their rights and the advantages and disadvantages to them of entering the said Financial Agreement. ______________________ did execute the said Financial Agreement in my presence, and did acknowledge and declare that they were executing it of their own volition and without any fear, threats, compulsion or influence from ______________________, or any other person.

DATED at the City of ___________________, in the State of this ____________ day of _________, 20___.

________________________
SOLICITOR
Print Name: _____________

I, ______________________, the person named in the annexed Financial Agreement, hereby acknowledge the foregoing this ____day of ______________20___.

________________________
______________________