I have just separated, what now?

We often see clients shortly after their relationships have ended.  Most clients are confused and unsure what steps they should take to protect their interests. 

Most importantly, stay calm.  It is important that you do not make hasty decisions. 

While you should obtain legal advice at an early stage it is  just as important that you obtain assistance with the emotional aspects of separation. 

Separation can be extremely difficult and you may experience intense emotions.  Counseling can be useful to clarify your thoughts and develop strategies to deal with your changed circumstances.

Frequently Asked Questions?

We have set out below some common questions that our clients often ask after separation to assist you to make the important decisions that may have consequences at a later stage. 

This is general information only and you should seek legal advice specific to your circumstances.    

We have been living together, are we in a Defacto Relationship?

In Queensland, up until 1 March 2009, as a general rule you needed to have been living together in a relationship of trust and intimacy for at least 2 years before a Court will deem your relationship a Defacto Relationship for the purposes of the Property Law Act (Qld). 

From 1 March 2009 the law for Defacto Couples changed significantly and now it is possible that you may be living in a defacto relationship if-

1. The total period of the relationship is at least 2 years (which can be made up of multiple periods); or

2. There is a child of the relationship; or

3. There has been substantial contribution made by one of the parties and a failure to make an order/ declaration would be unjust.

If you are unsure whether your relationship would be deemed a 'defacto relationship' you should seek specific advice from a Solicitor.

We already have an agreement, we don't need to see lawyers, do we?

Any agreement you reach with your partner should be formalised.  If an agreement is not made formal it may not be able to be enforced at a later stage and therefore may be useless. 

There are different types of agreements that can be drafted and you should seek Legal Advice to ensure that you have the correct agreement prepared for your circumstances.

I want to leave our home, what can I take?

After separation it is common for one party to move out of the home.  This can be a difficult and traumatic decision and often the person leaving the home will be unsure as to what they can and cannot take with them. 

We recommend that you take any personal paperwork with you if you leave.  It would also be advisable to take any smaller items of property, for example clothing and jewelry.  There may also be home contents that have particular personal significance to you. 

You should try to reach an agreement  with your partner about the division of home contents.  This will save significant expense to both of you. If there are particular items that cannot be agreed upon it may be best to leave them in the home and obtain legal advice.  Do not destroy or damage any items of property.

Are there any time frames I should be aware of?

Yes, with property settlement matters there are time frames that can affect your ability to apply to the Court for a property adjustment order. 

For married couples, you have 12 months after the date of your divorce to apply for a property adjustment order.

Defacto couples generally have a period of 2 years from the date of separation to make application to the Court for a property adjustment order.

When can I get divorced?

You cannot apply for a divorce until you have been separated for at least 12 months.  However, you can still apply for a property settlement or formalise arrangements for children immediately after you have separated.

What about the children?

The separation of parents can be a very distressing experience for children.  Most children will be vulnerable and younger children may express fear of abandonment and separation anxiety.

Separation should not mean the end of a relationship with your children for you or your former partner.  The family will continue, but in a different form and it is likely that your children will have two homes. 

The most important thing to remember is that children have a right to know and be cared for by both parents, as long as it is in their best interests. 

It is in very rare cases that children will not spend time with a parent.  You should try to agree with your partner from an early stage on arrangements for your children that provide them with security and routine.

Do I have to change my name?

After separation it is common for women that have adopted their husband’s name to return to using their maiden name.  You can choose to do this at any time and should contact the Registry of Births Deaths and Marriages.  You are not obliged to change your name and you are free to continue to use your married name even after divorce.

My children have been taken away, what do I do?

You should immediately obtain legal advice if your children have been removed from your home.  It may be necessary to apply for a recovery order– this means that the police may be ordered to collect the children and return them to your care.

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