Australian Family Law: A Guide for Separating Couples

Separation raises several legal questions at once — where the children will live, who pays for what, whether and when to divorce, how property and superannuation will be divided, and what happens to a will. Australian family law deals with each under different provisions, on different timetables and often through different processes. Knowing how the pieces fit together is the first step to sensible decisions.

How to use this guide

This guide is a map, not a manual. It explains what the law requires at each stage, which issues carry deadlines and which decisions are hard to reverse, and points to the detailed guides in this Information Centre. It concentrates on the Family Law Act 1975 (Cth) as it stands after the parenting amendments that commenced on 6 May 2024 and the property, maintenance and disclosure amendments that commenced on 10 June 2025. Where State law is mentioned — family violence orders, wills, duty — the Victorian position is given because that is where we practise. It applies to married couples and, subject to the threshold tests explained below, to de facto couples of any gender. Nothing here is a substitute for advice on your own facts.

Safety first

If you or your children are in immediate danger, call 000. For confidential support at any hour, 1800RESPECT is available on 1800 737 732. Family violence in the Act's definition (section 4AB) is not confined to physical violence; it includes coercive and controlling behaviour, threats, financial abuse and behaviour that causes a family member to be fearful.

Protection is available on two tracks. State courts make protective orders quickly, often on a police application — in Victoria, a family violence intervention order under the Family Violence Protection Act 2008 (Vic). The family courts can also grant personal protection injunctions under the Family Law Act, and family violence is expressly relevant to parenting decisions (section 60CC(2) and (2A)), to whether family dispute resolution and pre-action procedures can be dispensed with, and to a property settlement (sections 79(4)(ca) and 79(5)(a)). Where safety is a concern, get advice before you communicate, move or make any arrangement about the children. Our guides on family violence intervention orders in Victoria and family violence and parenting orders explain both tracks.

First practical steps

A few early steps prevent most avoidable problems.

• Get advice early. One conversation about time limits, disclosure and interim options is worth more before positions harden than after.
• Secure your documents. Identity and marriage documents, tax returns, payslips, bank, loan and superannuation statements, and any trust, company or property documents. You will need these for disclosure.
• Protect your privacy and your credit. Change passwords, review shared accounts and devices, open an account in your own name, and consider limiting joint credit or redraw by agreement with the lender.
• Notify Services Australia. Family Tax Benefit and child support depend on your circumstances, and the separation date matters.
• Write as though a judge will read it. Messages, emails and social media posts routinely become evidence.

Recording the separation

Separation is a fact, not a form. Under section 49(1) it can be brought about by the action or conduct of one party alone, and under section 49(2) the parties may be held to have separated even though they continued to live in the same residence. Nothing has to be filed, but the date matters: it starts the 12-month period for divorce and the two-year time limit for de facto property claims.

Communicate the decision clearly — ideally in writing — and keep a record of the changes that followed, such as separate finances and sleeping arrangements. If you separate under one roof, that record becomes evidence. Section 50 allows two periods of separation to be treated as continuous where a single attempt at reconciliation lasted three months or less. The evidence the court expects is covered in our guide to divorce and the 12-month separation requirement.

Children and interim arrangements

Separation changes nothing about parental responsibility by itself. Each parent continues to have parental responsibility for a child under 18 (section 61C), subject to any court order, and parents are encouraged, where it is safe, to consult each other about major long-term issues such as education, health and religion, with the child's best interests paramount (section 61CA). There is no presumption of equal shared parental responsibility and no entitlement to equal time.

When the court makes a parenting order the child's best interests are paramount (section 60CA) and are determined by the section 60CC considerations: safety, including from family violence, abuse or neglect; the child's views; the child's developmental, psychological, emotional and cultural needs; each proposed carer's capacity; and the benefit of a relationship with both parents and other significant people where it is safe. For an Aboriginal or Torres Strait Islander child, the right to enjoy their culture is also considered (section 60CC(3)). An order may allocate joint or sole decision-making for major long-term issues (section 61D(3)); joint decision-making requires genuine consultation and a genuine effort to agree (section 61DAA).

Most parents settle interim arrangements themselves. Put them in writing and keep them child-focused. Do not relocate children or withhold time unilaterally without advice. Where agreement fails, family dispute resolution is ordinarily required before a court application, and urgent interim orders are available where a child's safety requires them. Start with our guides to parenting arrangements after separation, parenting orders and the best interests of the child; relocation has its own guide.

Child support and maintenance

Child support is governed by the Child Support (Assessment) Act 1989 (Cth) and is separate from parenting orders and property settlement. Either parent can apply to Services Australia for an administrative assessment; the formula compares each parent's child support income with the costs of the children and adjusts for each parent's percentage of care. Either parent can seek a change of assessment in special circumstances, or the parents can make a limited or binding child support agreement, the latter requiring independent legal advice.

Spousal and de facto partner maintenance is a separate claim under the Family Law Act. A party is liable to maintain the other only to the extent they are reasonably able to do so, and only if the other cannot support themselves adequately because of caring for a child of the relationship under 18, age or incapacity for appropriate gainful employment, or another adequate reason (sections 72 and 90SF(1)). The court weighs the matters in section 75(2) or 90SF(3), which since 10 June 2025 expressly include the effect of family violence. Urgent and interim maintenance is available, and both claims are subject to the time limits below. See our guides to child support assessments and agreements and spousal maintenance.

Money, debts and self-help

Separation does not alter your contracts with third parties. A joint mortgage remains a joint obligation, a joint account can usually be drawn by either signatory, and a lease or guarantee continues until varied or released. Decide early, in writing, who pays which outgoings until settlement; where agreement fails, the court can make interim orders about the use of property, the payment of liabilities and partial property settlement.

Resist self-help. Emptying accounts, running up joint debt, transferring assets or selling property without agreement can be reversed and can count against you: section 79(5)(d) directs the court to consider any material wastage of property or financial resources caused intentionally or recklessly by a party. Equally, do not change locks, remove the other party's possessions or cut off essential services without advice. Our guides cover spending or transferring assets before settlement, the mortgage and household expenses during separation, debts and liabilities in a property settlement, interim property orders and changing the locks after separation in Victoria.

Disclosure and documents

Full and frank disclosure is not optional and it does not wait for a court case. Since 10 June 2025 the duty is written into the Act itself: section 71B (married) and section 90RI (de facto) require each party to a financial or property proceeding to disclose, in a timely manner, all information relevant to the proceeding. The duty also applies to separated parties preparing for such a proceeding or engaged in pre-action negotiation or mediation, and the Family Law Rules 2021 add detailed obligations.

Expect to produce tax returns, payslips, bank, loan and superannuation statements, valuations and documents for any company or trust in which you have an interest. Non-disclosure is a ground on which final orders can later be set aside (sections 79A and 90SN) and a financial agreement overturned (sections 90K and 90UM). If you suspect assets are being hidden, see our guide to financial disclosure and hidden assets.

Divorce

Australia has one ground for divorce: the marriage has broken down irretrievably, proved by 12 months of separation immediately before the application is filed (section 48). The court must not make the order if it is satisfied there is a reasonable likelihood of cohabitation resuming (section 48(3)). Either spouse can apply alone, or both can apply jointly (section 44(1A)); the other spouse's agreement is not required. At least one party must be an Australian citizen, domiciled in Australia, or ordinarily resident here for the 12 months before filing (section 39(3)). Applications are filed in the Federal Circuit and Family Court of Australia.

Where there is a child of the marriage under 18, section 55A prevents the divorce order taking effect unless the court has declared that it is satisfied proper arrangements in all the circumstances have been made for the child's care, welfare and development, or that there are circumstances by reason of which the order should take effect even though the court is not so satisfied. The court may adjourn the hearing to obtain a report from a family consultant. A divorce order ordinarily takes effect one month and one day after it is made, although the court may shorten or extend that period in the circumstances permitted by section 55. A party may remarry only once the order has taken effect (section 59).

Divorce does not divide property, decide where the children live or set child support, but it starts the 12-month time limit for property and maintenance proceedings. Our step-by-step guide to applying for divorce covers the forms, service, the hearing and the paperwork.

De facto couples: three gateways

Parenting law applies to every child, whatever the parents' relationship. Property and maintenance law for de facto couples under Part VIIIAB, however, depends on three threshold questions, each of which can be contested.

1. Was there a de facto relationship? Section 4AA asks whether two people not married to each other or related by family had a relationship as a couple living together on a genuine domestic basis, having regard to matters such as duration, common residence, financial interdependence, property, the care of children and mutual commitment. No single factor is decisive.
2. Is a section 90SB gateway satisfied? Orders can be made only if the relationship lasted at least two years in total, or there is a child of the relationship, or the applicant made substantial contributions and a failure to make an order would cause serious injustice, or the relationship was registered under a prescribed State or Territory law.
3. Is there a geographical connection? Section 90SK requires both parties to have been ordinarily resident in a participating jurisdiction when the application was made, together with a residence or substantial-contributions connection to that jurisdiction. Section 39A separately requires a party to be an Australian citizen, ordinarily resident in Australia or present here on the filing day.

Western Australia has not referred its de facto property powers to the Commonwealth, so couples connected with that State use the Family Court Act 1997 (WA), though superannuation splitting is now available under Part VIIIC of the Family Law Act. See our guide to de facto property claims.

Property, superannuation, tax and pets

Property settlement is governed by section 79 for married couples and section 90SM for de facto couples, which since 10 June 2025 set out the approach in the Act itself. The court identifies the parties' existing legal and equitable rights, interests and liabilities (section 79(3)); considers the contributions each made — financial and non-financial, direct and indirect, including as homemaker and parent — and the effect of any family violence on a party's ability to contribute (section 79(4)); and considers current and future circumstances, including the care of children, earning capacity, health, liabilities and any material wastage (section 79(5)). No order may be made unless it is just and equitable (section 79(2)). There is no presumption of equal division and no formula.

Superannuation is property that can be split by order or financial agreement under Part VIIIB (or Part VIIIC for Western Australian de facto couples). A split moves an interest between superannuation accounts; it does not convert superannuation to cash, and the trustee must be given procedural fairness.

Tax, duty and debts change the real value of a proposed division. Capital gains tax roll-over relief and Victorian duty exemptions are available for many transfers made under court orders or a financial agreement, but not for informal arrangements. Section 79(5)(e) also requires the court to consider each party's liabilities and how they were incurred.

Companion animals now have their own rules. A companion animal — kept primarily for companionship (section 4(1)) — can only be the subject of an order for sole ownership, transfer to a consenting person, or sale (section 79(6)), having regard to matters such as care, any family violence or cruelty, attachment and each party's ability to care for it (section 79(7)). Shared custody orders are not available.

Start with our complete guide to property settlement, then the four-step process, superannuation splitting, whether property settlement is always 50/50 and pets on separation.

Resolving the dispute

Most separations are resolved without a contested hearing — through negotiation, mediation or family dispute resolution, collaborative practice, or arbitration of financial issues by consent. The law actively steers parties that way.

Parenting: section 60I. A court cannot hear an application for a parenting order unless the applicant files a certificate from an accredited family dispute resolution practitioner (section 60I(7)). No certificate is required where an exemption in section 60I(9) applies — consent orders; child abuse or family violence, or a risk of either; urgency; a party's inability to participate effectively; or serious disregard of a recent order. The exemption is claimed by affidavit under rule 4.02 of the Family Law Rules 2021.

Financial: pre-action procedures. Before a property or maintenance application is filed, rule 4.01 requires compliance with the Schedule 1 pre-action procedures: inviting the other party to dispute resolution and making a genuine effort there, giving written notice of intention to start proceedings with a genuine offer if that fails, and exchanging documents. Compliance is excused where it was not appropriate, including for family violence or a risk of it, and urgency. Unreasonable non-compliance can result in a stay or a costs order.

Costs and the court. Under section 114UB each party ordinarily bears their own costs, subject to the court's power to order otherwise. Applications are filed in the Federal Circuit and Family Court of Australia, which refers most matters to dispute resolution before any trial. Court is the last resort — but sometimes the necessary one.

Formalising an agreement

How an agreement is recorded determines whether it is enforceable, final and tax-effective.

• Informal agreements — a handshake, an email, a signed note — do not ordinarily oust the court's jurisdiction under the Family Law Act, and so do not give the finality or the statutory consequences of consent orders or a compliant financial agreement: a claim can still be brought within the time limits, and capital gains tax roll-over and duty relief are not available. Depending on their terms and the surrounding circumstances, particular dealings may nonetheless create contractual or equitable rights between the parties.
• Parenting plans are written, signed and dated agreements about children (section 63C). They are flexible and the court must have regard to the most recent plan, but they are not enforceable as orders.
• Consent orders are made by the court on a joint application without a hearing. For property, the court must still be satisfied the orders are just and equitable; for children, that they are in the child's best interests. Once made they are binding, enforceable and final, and can be set aside only on limited grounds.
• Financial agreements under Part VIIIA (married) or Part VIIIAB Division 4 (de facto) can be made before, during or after a relationship. They are binding where the statutory requirements are met: each party must receive independent legal advice, each lawyer must sign a statement to that effect and the statements must be exchanged (sections 90G and 90UJ). Independent advice is not optional, but the Act also contains limited saving provisions under which a court may declare an agreement binding despite particular non-compliance — an outcome that cannot be assumed. No court reviews an agreement when it is made, and it can be set aside for fraud, non-disclosure, unconscionable conduct and other grounds in sections 90K and 90UM.
• Child support agreements are made under the Child Support (Assessment) Act and take effect only once accepted by Services Australia; property consent orders do not deal with child support.

Our guides to consent orders and binding financial agreements compare the two financial routes in detail.

Time limits

Family law has few limitation periods, but they run from different events and are easy to miss.

• Divorce: no deadline, but the application cannot be filed until 12 months of separation have elapsed.
• Married couples — property and maintenance: within 12 months after the divorce order takes effect (section 44(3)). Until there is a divorce that period has not started, but delay still weakens claims.
• De facto couples: within two years after the end of the relationship (section 44(5)).
• Out of time: the court may hear the matter with both parties' consent (sections 44(3AA) and 44(5A)) or grant leave where hardship would otherwise be caused to a party or a child. Leave is discretionary and should never be the plan.
• Children: no limitation period, but final parenting orders are reconsidered only if there has been a significant change of circumstances and reconsideration is in the child's best interests (section 65DAAA).

Our guide to time limits for property settlement explains how the periods are calculated and what leave involves.

Wills, powers of attorney and nominations

Separation changes your wishes long before the law changes your documents. A will made during the relationship remains fully effective on separation. In Victoria, divorce or annulment revokes a gift to a former spouse and their appointment as executor, trustee or guardian unless a contrary intention appears in the will (Wills Act 1997 (Vic), section 14), but the rest stands and the rules differ between States and Territories. If you die without a valid will while still married, your spouse may take a large share of your estate under intestacy rules.

Review promptly, rather than waiting for a divorce: your will; any enduring power of attorney or medical treatment decision maker appointment in favour of your former partner; superannuation and life insurance nominations, which separation does not cancel; and jointly held property, since a joint tenant's interest passes to the survivor unless the tenancy is severed.

When to get urgent or specialist advice

Seek advice immediately if:

• there is family violence, a threat to remove a child from Australia, or a risk to anyone's safety;
• a time limit is approaching — in particular the 12-month post-divorce period or the two-year de facto period;
• assets are being sold, transferred, encumbered or moved offshore, or a business or trust is being restructured;
• you are asked to sign a financial agreement, consent orders or a child support agreement, or you have been served with a court application;
• there are international elements — property, residence or citizenship overseas, or a marriage or relationship formed overseas;
• the pool includes companies, trusts, self-managed superannuation, farms or professional practices, or a party lacks capacity.

Our family law team can advise on all of these issues.

Frequently asked questions

Sources

Statutory references are to the consolidated text of the Family Law Act 1975 (Cth) as in force on 10 June 2025, incorporating the Family Law Amendment Acts 2023 and 2024 (Cth), and to the Family Law Rules 2021 (Cth) as compiled on the same date.

• Family Law Act 1975 (Cth) — consolidated text as in force on 10 June 2025.
• Family Law Rules 2021 (Cth) — rules 4.01 and 4.02 and Schedule 1 (pre-action procedures).
• Child Support (Assessment) Act 1989 (Cth) — Part 5 (administrative assessment formula), Part 6 (child support agreements) and Part 6A (departure determinations).
• Federal Circuit and Family Court of Australia — Family Law Amendment Act 2024 changes (property, maintenance and disclosure amendments commencing 10 June 2025).
• Services Australia — child support assessment formula and child support agreements.
• 1800RESPECT — national sexual assault, domestic and family violence counselling service, 1800 737 732.
• Wills Act 1997 (Vic), section 14; Family Violence Protection Act 2008 (Vic); Family Court Act 1997 (WA).