Separating amicably: what the process actually looks like

Many people assume that separating means going to court. In reality, most separations are resolved without a court hearing, particularly where both people want a fair outcome and are willing to talk.

Step 1: Get clear on where you stand

Before you reach an agreement, you each need to understand your position, including your assets, debts, superannuation and parenting arrangements. Each person should ideally obtain their own legal advice, even when the separation is friendly.

Step 2: Parenting arrangements

If you have children, the focus is on their best interests. Many parents agree on arrangements for where the children live, how time is shared and how decisions are made, without needing a court order. These arrangements can be recorded in a parenting plan, or made legally enforceable through consent orders. In most cases, parents are expected to attempt family dispute resolution before applying to court for parenting orders.

Step 3: Property and finances

A property settlement looks at all assets, liabilities and superannuation, the contributions each person made and each person's future needs. Both people must give full and frank financial disclosure. Once you agree, the agreement should be formalised so that it is legally binding, usually through:

• consent orders, which are made by the court without a hearing if the court considers the outcome just and equitable; or
• a binding financial agreement, which requires each person to obtain independent legal advice.

An informal agreement, such as a handshake or an email, is generally not enough to prevent later claims.

Step 4: Divorce

Divorce is separate from parenting and property matters. You generally need to have been separated for at least 12 months before applying, and it is possible to be separated while living under the same roof.

Watch the time limits

There are time limits for applying to the court for property orders after a divorce takes effect or, for de facto couples, after separation. If you intend to rely on an informal agreement, seek advice before the time limit expires.

Don't forget the practicalities

After separation, review your will, superannuation nominations, powers of attorney and insurance.

Frequently Asked Questions

Do we have to go to court if we agree?

Not necessarily. Consent orders can usually be made without attending court.

Is mediation compulsory?

For parenting matters, family dispute resolution is generally required before applying to court, with some exceptions.

Can we split property without a lawyer?

You can, but legal advice helps ensure the agreement is fair and enforceable.

Does divorce settle our property?

No. Property and parenting matters are separate.