Updated 28 October 2026
CM Law's Ultimate 50 List - Separated Couples FAQ #1: What is the Legal Process for Separation in New South Wales?
CM Lawyers divorce and separation services
You do not need to register a separation or obtain a court order simply to separate in NSW. Separation happens when a relationship ends; divorce, parenting arrangements and financial settlement are separate matters. You can begin addressing children, property and financial support immediately, without waiting for a divorce.
For couples in Sydney and elsewhere in NSW, the practical task is to establish what has changed, protect immediate needs and resolve the issues that remain. This guide explains the main steps under Australian family law and when a lawyer should check your position.
Record the separation date
Separation can be initiated by one person. Your former partner does not have to agree that the relationship is over. The intention to end the relationship should be communicated clearly and reflected in how you live. Keep a record of the date, relevant messages and any later reconciliation.
A written notice is not compulsory, but a clear record can help if the date is disputed. If communication creates a risk of violence or intimidation, obtain advice about a safe way to proceed. You do not need to confront someone in person to make the separation legally meaningful.
You can be separated while remaining in the same home. Different bedrooms may be relevant, but the overall circumstances matter, including finances, household arrangements, shared activities and how the relationship is presented to others.
If you later apply for divorce and lived under one roof during the relevant separation period, additional affidavit evidence will be needed. Explain the change in the relationship, why you remained together in the home and the arrangements for children. Evidence from an independent person may also be appropriate.
Make a practical plan for housing, essential bills, access to money and care of children. Leaving the home does not automatically surrender a property claim. Get advice before changing locks, transferring assets or agreeing to a permanent financial arrangement.
Make arrangements that meet the children’s needs
Discuss where children will live, time with each parent, schooling, healthcare and communication, where it is safe to do so. The child’s best interests are the paramount consideration when the court makes parenting orders. Safety, the child’s views and needs, and safe relationships with parents and other significant people are relevant.
The presumption of equal shared parental responsibility was removed on 6 May 2024. There is no automatic entitlement to equal time. The arrangements should suit the particular child, rather than follow an assumed percentage.
A parenting plan records an agreement but is not legally enforceable. Parenting consent orders are enforceable court orders. Obtain advice before changing existing orders or relocating with children where the move affects the other parent’s involvement.
Prepare a list of assets, debts, income and expenses. Include property, savings, superannuation, business interests and financial resources. Gather bank statements, tax returns, loan documents, company records and existing agreements. Access records lawfully and preserve documents rather than deleting or altering them.
Financial disclosure is an ongoing obligation in property and financial proceedings and relevant pre-action negotiations. It is not limited to assets in joint names. Missing information can undermine negotiations and lead to further court steps. If you cannot obtain information, ask your lawyer how it can be requested.
For property settlement, the framework considers existing interests and liabilities, contributions, and current and future circumstances, with a just and equitable outcome required. There is no automatic equal division. Since 10 June 2025, the legislation expressly addresses the relevant economic effects of family violence and contains specific rules about companion animals.
Address financial support and filing deadlines
Child support and spousal or de facto maintenance are different forms of support. Maintenance may be available where one person cannot adequately support themselves and the other has capacity to contribute. Eligibility and the amount depend on the circumstances; separation does not guarantee an entitlement.
For married couples, property settlement and spousal maintenance proceedings generally must be started within 12 months after the divorce takes effect. You can apply before divorce. For former de facto partners, the general deadline is two years after the relationship ends, and eligibility and jurisdictional requirements also apply.
These are deadlines for commencing proceedings, not merely beginning negotiations. Negotiating does not stop the clock. If a deadline is close or has passed, obtain advice promptly about filing and whether permission to proceed out of time is required.
Negotiation and mediation can help resolve disputed issues without a trial. Before a contested parenting application, family dispute resolution and a section 60I certificate are normally required unless an exemption applies. Urgency, family violence and child abuse or relevant risks can justify exemptions. Financial cases have separate pre-action requirements.
If agreement is reached about finances, ask whether consent orders or a financial agreement is appropriate. Consent orders require court approval; financial orders must be just and equitable, and parenting orders must serve the child’s best interests.
A document labelled a separation agreement does not become a binding financial agreement merely because both parties sign it. Each party needs independent legal advice on the prescribed matters, and technical statutory requirements must be met. Financial agreements can also be set aside in specified circumstances. Have a lawyer check the terms and the process.
A real case about pressure to sign
In Thorne v Kennedy [2017] HCA 49, the High Court considered financial agreements signed shortly before and after a wedding. Ms Thorne had moved to Australia to marry Mr Kennedy, a wealthy property developer. She had no substantial assets and depended heavily on him. Shortly before the wedding, he told her it would not proceed unless she signed an agreement.
Her independent solicitor strongly advised her against signing. Nevertheless, she signed the first agreement four days before the wedding and a substantially similar agreement afterwards. Following their separation, she sought to have both agreements set aside.
The High Court unanimously allowed her appeal on the basis of unconscionable conduct. A majority also found undue influence. It did not determine her eventual property settlement or maintenance entitlement.
The case shows why signatures and independent advice do not automatically overcome pressure or exploitation. Allow time for disclosure, advice and genuine consideration. If an existing agreement was signed in troubling circumstances, obtain advice about its enforceability.
Apply for divorce when eligible
If you are married, you can generally apply for divorce after 12 months and one day of separation, provided the marriage has broken down irretrievably. Australian citizenship, residence or domicile requirements must also be satisfied. De facto couples do not need a divorce.
Applications are made to the Federal Circuit and Family Court of Australia, usually online. You can apply jointly or alone. A sole application ordinarily requires service on the other spouse. You will need the marriage certificate and any required supporting evidence, including evidence about separation under one roof.
Where there are children under 18, provide information about their arrangements. The divorce does not decide parenting or property disputes. A divorce ordinarily becomes final one month and one day after it is granted, unless the court orders otherwise. Do not assume you are free to remarry before it takes effect.
Get advice before making lasting decisions
Some matters need urgent orders, including risks involving children, unavailable financial support or threatened disposal of assets. Court action may be necessary even while other issues are being negotiated. Fees, duration and outcomes depend on the issues and evidence; there is no reliable standard cost for every separation.
Bring your relationship timeline, financial records, existing agreements and court orders to your first appointment. Christine Manolakos and CM Lawyers can help identify the next steps. Always have a lawyer check your proposed arrangements before signing an agreement or relying on a filing deadline.
General information for people separating in NSW, not advice on a particular family or dispute. Have a lawyer check your circumstances, documents and proposed steps before acting.
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