Separation rarely follows a script. For some people it is a clear decision followed by a tidy set of steps. For many it is slower and messier than that: a long period of working out what to do, an agreement reached over the kitchen table, or a conversation that has been put off for years. If that sounds like you, you are not behind and you have not done it wrong.
This guide is for anyone in the Hunter Valley who is separating, has separated, or is not yet sure. It explains what is and is not required, the things that tend to surprise people, and the many ways a solicitor can help, which go well beyond filing for divorce. It sits alongside our separation and divorce page, which covers the legal process in more detail.
Hills Solicitors has acted for Hunter families since 1894. Most of what we do for people who are separating is practical and calm, and a lot of it happens well before anyone goes near a courtroom.
Separation Is Not a Straight Line
Real separations take many shapes, and the law has to fit all of them. You might:
- separate, wait a year or more, then apply for a divorce
- separate and keep living under the same roof for a while, often because of money or the children
- separate and divide the house, savings and belongings between you without involving anyone else
- separate, drift, and only deal with the paperwork years later
- agree on almost everything and just want it made certain
- separate, reconcile, and then separate again
None of these is wrong. But each has different legal consequences, and that is where a short conversation with a solicitor can save a great deal of worry later.
A Few Things That Surprise People
- You do not have to apply to be separated. There is no form and no waiting for permission. You can be separated while still living in the same house.
- Divorce and property are separate. A divorce ends the marriage, and it generally requires you to have been separated for at least 12 months. It does not divide your property or decide arrangements for the children. Those are dealt with separately.
- Time limits keep running. For married couples, an application for property or maintenance orders should generally be made within 12 months of the divorce order taking effect. For de facto couples, who do not divorce, the limit is two years from the end of the relationship. After that you need the Court’s permission. Legal Aid NSW sets out the same limits.
- An informal agreement is not a court order. Agreeing between yourselves is a good start. But it does not carry the same protection or enforceability as orders made by the Court.
What a Solicitor Can Do When You Separate
Many people think of a family lawyer as someone you call when things have turned hostile. In practice, most of the work is helping people get clarity and get things done. A solicitor can:
- Explain where you stand. What is likely to be included in the property you hold between you, how superannuation fits in, and what the options are for the children, in plain English and without commitment.
- Help you see the whole picture. Pulling together assets, debts, super and income so that decisions are based on facts, and so that nothing important is missed.
- Support negotiation and mediation. Preparing you for the conversation, helping you work out what matters most, and taking on the difficult exchanges if you would rather not have them directly.
- Turn an agreement into something binding. Through consent orders, which the Court makes, or a binding financial agreement, which is a private agreement with strict requirements.
- Put parenting arrangements in writing. From a parenting plan, which is flexible but cannot be enforced, to parenting orders made by consent when you want something that can be.
- Handle the divorce application. When the time is right, preparing and filing it so that it is straightforward.
- Carry the agreement out. Transferring the house, dealing with the lender, and working through transfer duty and tax. Our conveyancing team does this every day, so the legal and property sides are handled together.
- Look after the details people forget. Updating your will, powers of attorney and super nominations, and keeping an eye on the time limits.
If your situation is about dividing assets, our property settlement page explains how that works.
Where Are You Right Now?
There is no right place to start. Here is what is worth thinking about, depending on where you are.
You have just separated
You do not need to decide everything now. It is worth gathering your financial information, avoiding big financial decisions or signing anything in a rush, and talking to a solicitor early, even if it is only to understand your options.
You are still living under the same roof
This is common, and it can still count as separation. It helps to keep a record of when the separation began, and to talk to a solicitor about practical arrangements, such as how bills and the children will be managed in the meantime.
You have already divided things between you
It can feel finished, but it often is not. An informal split may leave gaps. Superannuation cannot be divided by informal agreement. It needs carefully drafted orders, which the super fund reviews before they are signed. A lender is also not bound by what you have agreed, so removing a name from a mortgage usually needs the lender’s approval. An informal split can also miss out on tax and transfer duty relief that formal orders or agreements can unlock, if the paperwork meets the requirements. And the time limits above still apply.
You separated a while ago and never formalised it
Check your dates as soon as you can. Once the time limits have passed you need the Court’s permission, so it is much easier to act sooner.
You agree on most things
That is a good position to be in. A solicitor can help you turn the agreement into consent orders or a binding financial agreement, so that it is certain and enforceable.
You cannot agree
That is not unusual either. A solicitor can help you understand what a fair outcome might look like, negotiate on your behalf, and advise on mediation and, if it is needed, the next steps.
What to Gather Before Your First Appointment
You do not need everything, and you can come with whatever you have. If you can, it helps to bring:
- bank, credit card and loan statements, including any joint accounts
- recent super statements for both of you, if you have them
- details of property you own: titles, contracts, rates notices and recent valuations
- recent tax returns and payslips
- details of any business, vehicles, investments or inheritances
- any agreement, parenting plan or orders you already have
- the date you separated, and the dates of your marriage or relationship
Looking After Yourself
Separation is a hard time, and the legal side is only part of it. These services are free and confidential:
- Family Relationship Advice Line: 1800 050 321, for information and advice about separation and parenting.
- 1800RESPECT: 1800 737 732, 24 hours, for anyone affected by family or domestic violence.
- Lifeline: 13 11 14, 24 hours, for crisis support.
If you are afraid for your safety or the safety of your children, call 000.
Separation Advice in Maitland and the Hunter Valley
We act for people across Maitland, East Maitland, Rutherford, Thornton, Cessnock, Kurri Kurri, Newcastle and the wider Hunter. Our office is at 447 High Street, Maitland, and we also offer phone and video consultations if that is easier for you.
Frequently Asked Questions About Separating in NSW
Do I have to be separated for 12 months before I can see a solicitor?
No. The 12 months applies to applying for a divorce, not to getting advice. You can speak to a solicitor at any time, including before you separate, to understand your options.
Can we divide everything between ourselves without a solicitor?
You can agree between yourselves, but an informal agreement is not a court order and may leave gaps, such as superannuation, mortgages, and tax and transfer duty. Many people have their agreement checked, and made binding, so that it holds up.
Do I have to go to court if I separate?
Not necessarily. Many people reach agreement without a hearing, and consent orders are made without you attending court. Court is usually a last resort when agreement cannot be reached.
Can we be separated while still living in the same house?
Yes. Separation can happen under the same roof. If you later apply for a divorce, you may need to give the Court extra information to show that you were separated.
Does separating change my will?
Separation alone does not change your will or any power of attorney or enduring guardianship you gave your former partner. A divorce can, so it is worth reviewing them early.
When should I speak to a solicitor?
As early as you like, and before you make large financial decisions or sign anything. There is no need to wait for any particular time or step.
Whatever Your Situation, Talk to Us Early
Every separation is different, and there is no single right way through it. Hills Solicitors helps people at every stage, with clear advice and without pressure. To find out more, see our separation and divorce page, or our family law team.
Book a consultation with our team today, or call us on (02) 4933 5111. Check our FAQ page if you have any questions.
