DraftThis guide has not been reviewed by a lawyer yet. It is general information about Queensland law, not legal advice.
The short version
- Separating is the start of several separate steps: where you live, the children, money and property, and (if you were married) divorce.
- You do not have to go to court to sort most of it out. Many people agree on things with help from a service.
- There are time limits for property: usually 12 months after a divorce takes effect if you were married, or 2 years after the relationship ended if you were de facto.
- Divorce usually needs 12 months of separation. Divorce does not decide property or the children.
- If you are unsafe, call 000. DVConnect is on 1800 811 811, all day and night.
If you have just separated, or are thinking about it, you may feel tired, scared or unsure where to start. You do not need to sort everything out this week. If you are in danger now, call 000. For domestic and family violence support at any hour, call DVConnect on 1800 811 811. If you are struggling, Lifeline is on 13 11 14.
What this usually means
Separating usually brings four separate questions. They are linked, but you can deal with them one at a time.
- Where each of you will live.
- The children. See our guide on arrangements for the children.
- Money and property. This includes the house, super, savings, cars and debts.
- Divorce, if you were married.
Family law about all of this is Commonwealth law, the Family Law Act 1975. It applies in Queensland to married and de facto couples. In most cases it is the Federal Circuit and Family Court of Australia that hears these matters.
Most people do not end up in a courtroom. Many agree on things themselves, or with help from a lawyer or a family dispute resolution service. If you agree, you can ask the court to make your agreement into consent orders.
Divorce is different from the other three. A divorce only ends the marriage. It does not divide property or decide who the children live with. A de facto couple does not need a divorce.
What you can do now
- Make a safe plan if you need one. If you are afraid of the other person, do not wait. Call DVConnect on 1800 811 811 or Women's Legal Service Queensland. See our guide on a protection order.
- Write down what you have. List the property, super, bank accounts and debts, with rough values and any statements you can get. This helps whoever advises you.
- Keep the paperwork safe. Copy bank statements, tax returns, loan documents and super details. Only do this in a way that is safe for you.
- Get general legal information early. Legal Aid Queensland, a community legal centre or the Family Relationship Advice Line can explain your options.
- Think about family dispute resolution if it is safe. It is a meeting with an independent person to help you reach agreement. It is not always suitable where there has been family violence. Tell the service about your safety concerns.
- Avoid signing anything big yet. Think twice before signing a property agreement or a transfer of the house until you have had legal advice.
Time limits
These are the main ones. Check your own dates with a lawyer, because late applications need the court's permission and it is only given for good reason.
- Divorce: you must usually have been separated for at least 12 months and 1 day. You can be separated while living in the same home, but you need to give extra information to the court. If you were married for less than 2 years, you must usually attend counselling and file a certificate, or ask the court for permission to go ahead without one.
- Property if you were married: you can apply any time before the divorce takes effect. After that, you generally have 12 months.
- Property if you were de facto: you generally have 2 years from when the relationship ended.
After these dates you can still ask the court for permission to apply, but it is not automatic.
If it goes further
If you cannot agree, either person can apply to the Federal Circuit and Family Court of Australia for property orders. The court looks at what each of you has, what each of you contributed (including looking after the home and children) and what each of you needs in future. It then decides what is fair. Family violence can be one of the things the court considers. The court may also make short-term orders while the case is waiting, such as who stays in the home.
Court cases take time and money, and Legal Aid Queensland may help some people with a lawyer. Ask early.
Questions to ask whoever helps you
- What time limits apply to me, and what is the date by which I should apply?
- Is family dispute resolution safe and suitable for my situation?
- Could I be helped by a free service, such as Legal Aid Queensland or a community legal centre?
- Should I make a list of my property and debts before we talk to each other?
- If we agree, how do we make the agreement binding?
Good questions
Do I have to be separated for 12 months before I can sort out property?
No. The 12 months is for divorce only. You can sort out property and arrangements for the children at any time after you separate.
Can we be separated if we still live in the same house?
Yes. For divorce, the court accepts separation under one roof, but you need to give extra information to show it. A lawyer or the court website can explain what is needed.
Do de facto couples need a divorce?
No. A divorce is only for marriages. A de facto couple still has time limits for property.
Words you might hear
- Family dispute resolution
- A meeting with a trained, independent person to help you reach agreement without going to court.
- Consent orders
- An agreement that the court approves and turns into an order.
- Leave
- The court's permission to apply after a time limit has passed.
Where this comes from
- Money and property, Family Relationships Online (Australian Government)
- Applying for financial or property orders, Legal Aid Queensland
- Divorce, Family Relationships Online (Australian Government)
- Have you been married less than two years?, Federal Circuit and Family Court of Australia
- Family Relationship Advice Line, Family Relationships Online (Australian Government)