Separation is rarely only a legal event. It can affect many aspects of your life that you take for granted, such as:
- Where you live,
- How bills are paid,
- Arrangements for children,
- Access to documents, and
- Your longer-term financial position.
Taking a few careful steps before anything changes can help you make informed decisions and avoid preventable difficulties later.
This guide outlines practical matters to consider before separating. The steps that are appropriate will depend on your circumstances, particularly if there are urgent safety concerns, family violence or a risk that assets may be sold, transferred or concealed.
IMPORTANT: If you or a child is in immediate danger, call 000. If it is not safe to follow any step in this guide, please prioritise safety and obtain urgent legal or specialist support.
1. Obtain legal advice before making major decisions
You do not need to wait until after separation to speak with a family lawyer. Early advice can help you understand your rights, likely issues and practical options before you move out, change financial arrangements or communicate a final decision to your partner.
Advice before separation may be particularly important where there are:
- Significant assets, debts, businesses, trusts or complex financial structures;
- Children and potential disagreement about their care;
- Concerns about family violence, coercive control or personal safety;
- A risk that money or property may be removed, sold or transferred; and
- Questions about whether a de facto relationship existed or the date of separation.
2. Understand and record your financial position
Prepare a clear snapshot of the financial circumstances of both parties, so far as the information is lawfully available to you.
Property matters are not confined to assets held in joint names. Depending on the circumstances, relevant interests may include assets, liabilities, superannuation and financial resources held individually, jointly or through companies, trusts and other structures.
This may include gathering the following:
- Bank statements;
- Mortgage documents;
- Property ownership records;
- Superannuation statements;
- Tax returns;
- Payslips and income records;
- Business financial records;
- Investment statements;
- Loan and credit card statements; and
- Insurance documents.
Having a clear record of your financial position can make it easier to understand what may need to be considered if a property settlement is required.
It also makes it easier to comply with your duty of disclosure.
Financial disclosure is an important part of family law proceedings. Parties have obligations to provide relevant information about their financial circumstances, including direct and indirect financial interests.
3. Protect your privacy and digital security
Review the security of your personal email, banking, cloud storage and devices. Where it is safe to do so, consider:
- Changing passwords,
- Enabling multi-factor authentication,
- Reviewing location-sharing settings and
- Using a private email address for confidential communications with your lawyer.
Avoid changing passwords for accounts that belong jointly to both parties without first obtaining advice.
4. Consider where you will live
Before leaving the family home or asking the other person to leave, consider the practical, financial and parenting consequences. Moving out does not, by itself, determine ownership of the home or remove a person’s potential property entitlements. However, it may affect day-to-day arrangements, access to belongings and the care of children.
If remaining under the same roof is unsafe or unworkable, obtain advice about urgent options. Do not put yourself or a child at risk to preserve a perceived legal advantage.
If you are uncertain about your circumstances, obtaining legal advice before making arrangements can help clarify your position.
5. Consider safe and workable arrangements for the children
If you have children, their safety and best interests should remain the paramount consideration when factoring in their living arrangements and ongoing care.
Depending on the circumstances, their ages and needs, parents may need to discuss:
- Where the children will live;
- When they will spend time with each parent;
- School and education arrangements;
- Healthcare and medical needs;
- Financial support;
- Holidays and special occasions; and
- Communication between the children and each parent.
Parents do not necessarily need to go to court to make arrangements for their children. Where it is safe and appropriate, arrangements can be recorded in a parenting plan or formalised through consent orders. A parenting plan is not itself legally enforceable, while consent orders are enforceable court orders. Legal advice can help you decide which option is suitable.
Before filing most applications for parenting orders, a person must usually attempt family dispute resolution and obtain a certificate from an accredited family dispute resolution practitioner. Exceptions may apply, including in urgent cases or where there has been, or is a risk of, family violence or child abuse.
6. Avoid making significant financial changes without advice
Separation can create pressure to make immediate decisions about property, bank accounts, debts, or other financial matters. However, doing so without understanding their potential consequences can create additional complications.
Before selling or transferring an asset, withdrawing substantial funds, changing ownership, closing an account, increasing debt or making an unusual payment, obtain advice about the possible consequences.
You may still need to take reasonable steps to meet ordinary living expenses and protect access to essential funds. The appropriate response depends on the circumstances. Keep clear records of significant transactions and avoid conduct that could later be characterised as concealing, dissipating or improperly dealing with property. This may be considered a form of family violence that may open the door to the other party applying for an Intervention Order against you.
This does not mean that every financial decision requires a lawyer. Rather, where a decision could significantly affect the parties’ assets, liabilities, or financial interests, understanding the potential implications beforehand may be important.
7. Think about how property and finances may be resolved
Separation does not automatically require court proceedings.
If both parties can reach an agreement about their property and financial arrangements, there are different ways that agreement may be formalised. These can include consent orders or a binding financial agreement, depending on the circumstances.
It can be useful to understand these options before making informal arrangements, particularly where substantial assets, businesses, superannuation, or other financial interests are involved.
Legal advice can help you understand which options may be appropriate and whether an agreement properly addresses the financial relationship between the parties.
8. Keep records of important communications
It can also be useful to keep relevant records of communications and financial arrangements following separation.
Depending on the circumstances, this may include records relating to:
- Financial contributions;
- Mortgage or household expenses;
- Parenting arrangements;
- School or medical expenses;
- Property discussions; and
- Agreements reached between the parties.
Keeping organised records can make it easier to establish what was discussed or agreed if questions arise later.
Final thoughts
Good preparation is not about escalating conflict. It is about understanding the position, preserving information, protecting safety and making deliberate decisions. Every family is different, so receiving tailored advice is particularly valuable before taking any step that may materially affect children, housing, property or access to funds.
If you are considering separation and would like to understand your legal options, the experienced family law team at the Tonkin Legal Group can provide guidance about property, parenting arrangements, financial disclosure, and the steps that may be relevant to your situation. Call us on (03) 9435 9044 or contact us by email at reception@tonkinlaw.com.