Separation Without Divorce: Exploring Alternatives to Ending a Marriage in Australia

When a marriage or a de facto relationship has run its course and you don’t want it anymore, the word that suggests itself is divorce. But that is the dissolving of the legal contract between two people. Before that comes separation.

To clear up the potential confusion, let’s look at the term de facto relationship. De facto is Latin for in fact. It means that, to all intents and purposes, two people are married. The old terms common law wife/husband meant the same. Same-sex relationships stirred up the general understanding of such arrangements, and Australian society now has a broader view. For the sake of convenience, we will use the terms married and marriage to indicate two people sharing their lives in this way.

Before divorce comes the more basic act of separation – when you cease to live together as a couple. The marriage may still exist technically and on paper, but in reality, it’s over.

Separation is a fact, not just a state. You don’t even have to be separated geographically, but you’re operating as two individuals now, not as a couple. In rare cases, separated people can still live in the same house, but separately, like tenants who occupy different parts of the same building. Obviously, for most people, this is a highly uncomfortable, even intolerable state of affairs, but it is done in certain circumstances, and depending on the personalities involved, it may be perfectly okay or—bizarrely—even ideal.

When children are involved, for instance, the parents may choose to keep their personal differences quiet for the sake of family harmony. If they can pull it off, this can be very beneficial to the children, who are innocent bystanders wanting nothing more than to be part of a solid, safe, happy unit. They can sense when there is discord, but if it is kept to a minimum and life goes on more or less as normal, emotional damage is minimised too.

The Usual Story: You Can’t Stand to Be Near Them

When a marriage breaks down, the emotional fallout can be devastating. All the shared dreams and plans seem ludicrous: you can’t imagine how you ever got mixed up with this person. This is a perfectly natural reaction because a commitment between two people involves trust and making ourselves vulnerable. Bitterness and recriminations are, while not desirable, completely understandable.

When you know the relationship is on its last legs and you want to get out of it, it is important to tell your partner this. They do not have to agree. If you say you want to separate, you can do so. Make a note of the date and time, because there will be official matters further down the road that will be based on the precise point at which the separation began.

This means financial matters, including joint ownership of property, which brings us to the matter of documentation: make copies of everything, from your marriage certificate to children’s birth certificates and passports, plus property deeds and bank statements.

Who Stays and Who Leaves?

The issue of who stays and who leaves is often a huge sticking point, because of the commonly held belief that whoever moves out surrenders the advantage. However, in Australia, you do not lose your property rights if you leave the family home; it just means you lose your base there. So if you do move out, make sure you take with you everything you need and as much of what you want as possible. That includes furniture, photographs, paintings, and other items. Remember that while possession does not imply ownership, the longer you leave something with your ex, the more it will feel like it belongs to them.

Separated But Still Both in the Same House

Couples who choose to separate but continue to live in the same property must go through the same procedures as those who live apart, in terms of dividing assets. If you have made what could be described as the “civilised” decision to both remain in the family home to avoid complications, you must press ahead with getting your finances and assets separated legally.

Change your passwords on anything where it is possible your ex may know or guess them.

If you don’t already have a personal bank account, set one up. And if you can agree on what you can take from any joint accounts, so much the better. However, don’t do this without consulting your family lawyer first. There are points of law you don’t know about, which could be to your advantage. Which leads us to some very important advice:

Consult a Lawyer Immediately

As soon as you know you’re going to separate, find yourself a good family lawyer and give them all the details—they will tell you what they need, and it will involve documents and hard facts. They will also tell you what you need to do and what you should not do. Even if you are determined to handle the whole thing fairly and peacefully, there may be potential issues you can avoid, so take expert advice from the start. Don’t leave this until later, or you may find you have given away ground unnecessarily.

Make a Plan

If you are going to be moving out, look at it logically and practically. Where will you live? Will you have enough money to pay rent and live comfortably? If you have children, how will this affect their schooling and social life? You are about to embark on a very different way of life in which you will be making all the decisions, finding all the money, and solving all the problems, so there will be stresses and strains you may never have experienced before.

Once you have moved out, do not take a child out of the country or even the state without informing your partner. This can create anxiety in them, and even if you have the best of intentions, you can inflame the situation. So communicate with them. That may be the last thing you want to do at this stage, but if there are to be legal proceedings—i.e. divorce—it is important to be, and to appear to be, rational and cooperative, not antagonistic.

Dealing with Violence and Abuse

If you have been subjected to violence and/or abuse, it is highly unlikely that you will want to stay under the same roof as the perpetrator. But even if you move out or persuade them to move out, you should report these incidents to the police.

There is also the concept of “narcissistic abuse” by your partner, which is psychological and emotional and involves manipulation and exploitation as a means of gaining control over you. An increasingly common term in this regard is “gaslighting,” which means eroding someone’s self-confidence and belief so that they don’t even realise it is happening. If you think this has happened to you, tell your lawyer.

Look Forward to a Good Future

Separation and divorce are always upsetting and can be traumatic, but they are not the end of the world. There is light at the end of the tunnel, and one day, all will be calm and ordered again. The trick is to think things through, take professional advice, and work towards a satisfactory outcome. Separation without divorce may not be for everyone by any means, but if it could work for you, find yourself a great lawyer and go for it.