At the top of your marriage separation checklist, you should consider creating a “statement of separation declaration”. While this document is not legally binding, it can serve as evidence of the date of separation. Such evidence can be critical if there is a dispute during settlement.
For more information on how to legally document your separation and property settlement see our article Using a Separation Agreement Template in Australia.
A statement of separation declaration is a written document that complies with section 90XP of the Family Law Act (1975). This document states that the parties were married or in a de facto relationship, separated on a particular date, and there is no reasonable likelihood of reconciliation.
The date of separation can be useful in determining financial settlements and eligibility for divorce. Such a document can also be required when splitting superannuation, changing bank details, and accessing government benefits.
A statement of separation is beneficial if the two parties still live under the same roof. According to the Family Law Act, spouses can have separated even if they “reside in the same residence” or “rendered some household services.” “Household services” can include cooking, cleaning, gardening, and doing the laundry.
Your separation declaration will form part of an application for orders from the court, or your binding financial agreement. In fact a binding Financial agreement only comes into effect after the parties sign the separation declaration.
You only need one party to sign a declaration, and the other party is not obligated to sign it. However, having both signatures does make the rest of the separation process smoother and can help avoid any misunderstandings in the future.
The Australian legal system does not utilise the term “informal separation”. While you may create an informal agreement in separation, it will not be considered valid by our courts. Signing a declaration has its benefits but plays little role in the financial separation of the couple.
Unlike the separation declarations for Family Law purposes, the government may require formal documentation as evidence of your separation. These forms must be filled out even if you already have a separation declaration.
If you need a separation declaration to access government services, Services Australia provides several forms. The Separation Details Form is sufficient for most circumstances, while you may require a Separated Under One Roof form if you are still living in the same house.
If you are separated under one roof and seek a formal divorce, you must fill out an affidavit signed by an authorised third party.
These government forms may be filed online and do not require you to engage a lawyer. However, seeking advice may be prudent as providing false or misleading information on such forms is an offence.
Separation is stressful. It is easy to forget everything you need to cover, and having a declaration of separation is only the first step. RP Emery provides a free checklist for people undergoing separation.
The most important step for a separated couple is to reach a mutual agreement about settling the division of your property.
A settlement agreement, or binding financial agreement, is a contract that lays out how a former couple may split assets and liabilities.
It will include information about spousal maintenance, how to deal with superannuation or how to deal with your family home or investment properties. This agreement is made under part VIIIA (for married couples) or Part VIIIAB (for de facto couples) of the Family Law Act (1975). For de facto couples in Western Australia, the agreement is made under the Family Law Act (1997) (WA). An agreement’s existence is essential to the settlement process if you want to avoid court.
This agreement can be drafted by lawyers, who can ensure it complies with Australian law. If you are still on amicable terms and wish to save on expensive fees, you might also choose to use a DIY Separation Agreement.
Whichever path you take, you will need to eventually seek independent legal advice and obtain a legal practitioner’s certificate. This will help ensure the contract is legally binding and admissible in court if a dispute arises.
Using an Australian separation agreement template is vital. Other countries have different laws regarding separation and divorce, and your contract may be invalid if you use one from overseas.
RP Emery provides low-cost separation agreement templates that Australian lawyers drafted to comply with the Family Law Act (1975). We also offer our legal review service, which provides independent legal advice to both parties, a crucial step in ensuring your agreement is binding.
