Legal Updates

Demystifying Separation: Formalising Separation

This article is part of our demystifying separation series. For more updates, click here.


How do we document any arrangements made? Do we need to?

Agreements about how you divide your property on separation (often called “Separation Agreements”) must meet specific legal requirements to be valid. That includes:

  • Being recorded in writing and signed by both you and your ex-partner.
  • You must both have had independent legal advice before signing the agreement.
  • Your signature must be witnessed by the lawyer who gave you advice on the agreement.
  • The lawyer’s advice must include an explanation of what the effects and implications of the agreement are.

If you don’t have a written agreement that complies with these requirements, you are unlikely to be able to enforce it.


For a lawyer to advise you on the effects and implications of an agreement, they will need to gain a full understanding of what property you own so they can assess any proposed agreement against your entitlements. Give your lawyer as much information as you can about the property you own so they can make the necessary enquiries.


Your lawyer will help you negotiate the terms of an agreement with your ex-partner and will draft an agreement which represents how you want to divide your property.


Your lawyer can also help you draft any agreements reached relating to other matters such as spousal maintenance, care arrangements for children, or child support. Having these agreements in writing means you both have certainty and clarity as to what the arrangements are. It also means you can apply to the Court to enforce if your ex-partner fails to comply.


Do I need a lawyer?

Even if the separation is amicable, it is wise to get a lawyer to help you through the process. Lawyers can advise you on the legal aspects of separation and help you consider whether any proposed agreements relating to dividing property is in your best interests. Lawyers can also advise you if you have any entitlements to additional financial support, and help you resolve matters when you and your partner cannot agree.


You will need to engage a lawyer to create a formal written agreement on how to divide your property to make it legally enforceable, and lawyers can assist you to formulate written agreements on childcare arrangements.


Choosing a lawyer is an important step as it can influence how separations are resolved. Each lawyer has a different approach – some will be natural litigators, whereas others may steer towards peacekeeping and conflict avoidance. Sometimes people need more guidance through the process than others and need a lawyer who will take them through matters step by step. When considering which lawyer to engage, make sure their strengths and professional approach align with your personal needs.


I’m not married but have been with my partner for a long time. What rules apply to me?

Even if you are not married or in a civil union, the rules and processes relating to how you divide your property may still apply to you.

If you have been living with your partner as a couple, you may be in a “de facto relationship” – which means your relationship is essentially in the nature of a marriage or civil union without the formal paperwork.

The law relating to how property is divided between you if you separate applies to people in de facto relationships. The usual benchmark for qualifying de facto relationships is three years of living together, but can be less, depending on other factors discussed below.

“Living together” does not mean just in the physical sense – so you will not be in a de facto relationship with a long-term flatmate! De facto relationships are determined by the circumstances, including:

  • How long you have been together;
  • Whether you live together, full time or in part, and how you divide the household duties between you;
  • Whether you have a sexual relationship;
  • Whether you share bank accounts or finances, or support each other financially;
  • If you own property together;
  • If you have children together, or care for children jointly;
  • What the public perception of your relationship is.

If you and your partner are considering entering a de facto relationship, it may be worth considering whether to enter a contracting out agreement. For more information, get in contact with a member of our team: Ruth WilliamsJaesen Sumner