Separation checklist Australia 2026 — what to do in the first 90 days, what to avoid, and the deadlines that matter

At a glance — the first 90 days of separation

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What do I do first after separation in Australia 2026?

The first thing to do after separation in Australia is get clear, neutral, lawyer-given information about your legal position before you make any major financial or parenting decisions. The Family Law Act 1975 (Cth) governs separation, property settlement, parenting matters, and divorce, with proceedings in the Federal Circuit and Family Court of Australia. Several time limits matter immediately: divorce can only be applied for after 12 months and 1 day of separation; property settlement applications must be made within 12 months of the divorce order (married couples) or 24 months of separation (de facto couples) under section 44; section 60I mediation is required before most parenting court applications. The single biggest mistake people make in the first 90 days is acting on advice from friends, online forums, or one party's family — generic advice that may produce poor outcomes for your specific situation. A free 30-minute consultation with a family lawyer gives you tailored information without commitment. At Fogarty Oliver Rothschild, the initial consultation is free and substantive. This guide is for anyone in the first weeks or months of separation trying to understand what to do, what to avoid, and what the deadlines mean.

Book a free 30-minute consultation → | Call 0480 031 704

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What is "separation" under Australian family law?

Separation is the point at which a relationship breaks down. There's no formal registration of separation — it's a factual state.

Key markers of separation:

• One party has communicated that the relationship is over
• The parties no longer live together as a married/de facto couple (though separation under one roof is possible)
• Joint activities and shared life have ended
• The parties may or may not still live in the same residence

Separation under one roof:

You can be separated while still living in the same house. Common reasons — financial necessity, children's stability during transition, gradual moving out. To establish separation under one roof, the parties need to show:

• The relationship has ended in substance
• They live separate lives within the residence (separate bedrooms, separate finances, separate social activities)
• Other indicators of separation are present

For divorce applications, separation under one roof requires supporting evidence (typically affidavit evidence from a third party).

Date of separation matters for:

• Triggering the 12-month period before divorce can be applied for
• Triggering the 24-month time limit for de facto property settlement applications
• Calculating property settlement contributions (post-separation contributions are assessed differently)
• Some superannuation matters

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The first 90 days — what to do

Week 1 — Get oriented

1. Don't make irreversible decisions.

Don't close joint accounts unilaterally. Don't transfer property. Don't change the names on titles. Don't move children interstate. Don't sign documents from the other party without legal review. The first week is for orientation, not action.

2. Get a free 30-minute legal consultation.

A family lawyer can tell you, in 30 minutes, what your legal position is, what the realistic outcomes look like, and what time limits matter. This shapes everything else you do.

3. Document the date of separation.

Note the date you separated. Save text messages or emails confirming the decision. This date matters for legal time limits and (for de facto matters) for triggering the relationship-end date.

4. Secure important documents.

Where you have access, secure copies of: marriage certificate, birth certificates of children, property titles, mortgage documents, superannuation statements, tax returns (last 3 years), bank statements, business financials, will. Both parties have disclosure obligations, but having your own copies is sensible.

5. Make immediate practical decisions.

Where will you live? Where will the children live? Who has the car? Who pays the next bill due? These are practical questions for the first week. Legal questions can wait until after the consultation.

Weeks 2-4 — Establish stability

1. Update your will and powers of attorney.

Separation doesn't automatically revoke your will (except in some specific circumstances). If your existing will leaves everything to your former partner, that's still legally effective until you update it. Update before doing anything else.

2. Update beneficiary nominations.

Superannuation and life insurance often have separate beneficiary nominations that don't change with your will. Update these directly with the relevant fund or insurer.

3. Consider intervention orders if family violence is a concern.

The Family Violence Protection Act 2008 (Vic) provides personal safety protection for people experiencing family violence. Intervention orders are obtained through the Magistrates' Court. This is urgent if violence is present or threatened.

4. Establish independent financial arrangements.

Open your own bank account if you don't have one. Direct your salary to your own account. Establish your own credit card. Maintain visibility on joint accounts but transition to independent banking.

5. Notify your superannuation fund.

Some superannuation funds need to be notified of separation for various administrative purposes (changes to nominations, contribution arrangements). Check what your fund requires.

Weeks 5-12 — Plan the resolution pathway

1. Engage formally with a family lawyer.

By weeks 5-12, you should have moved from the free consultation to formal engagement. Fixed-fee or hourly arrangements depending on the matter. Discuss the pathway — agreed outcomes (consent orders, BFA), mediated outcomes, or litigated outcomes.

2. Begin disclosure exchange.

Both parties have an obligation to disclose all relevant financial information — assets, liabilities, income, financial resources. Disclosure is foundational to any property settlement. Collate your own documents proactively.

3. Consider mediation for parenting matters.

Family Dispute Resolution is required under section 60I before parenting court proceedings (with limited exceptions). Even where not strictly required, mediation often resolves parenting matters more cost-effectively than negotiation through lawyers.

4. Establish parenting arrangements practically.

Even without formal orders, agree practical parenting arrangements. Stability for children is the primary consideration. Avoid unilateral changes (e.g. moving children to a different school, restricting contact with the other parent).

5. Plan for property settlement.

Identify the property pool, get realistic valuations of major assets (real estate, superannuation, business interests), and form a position on what a reasonable outcome looks like.

6. Consider get coordination if applicable.

For Jewish couples, the religious dimension of divorce (the get) typically runs in parallel with the civil divorce. Beth Din coordination begins during the separation period. See Family Lawyer Caulfield North →

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What to avoid in the first 90 days

1. Don't close joint accounts unilaterally.

Closing or draining joint accounts can be characterised as asset dissipation in subsequent property settlement. It can also trigger urgent court applications by the other party. Discuss with a lawyer first.

2. Don't transfer property without consent orders or BFA.

Property transferred between separating spouses without consent orders or BFA does NOT qualify for the section 44 Duties Act 2000 (Vic) stamp duty exemption. A $1M family home transfer can attract $55,000+ stamp duty unnecessarily. Wait for proper documentation.

3. Don't move children interstate or internationally without consent or court orders.

Unilateral relocation can result in court orders for the children's immediate return. International relocation may trigger Hague Convention applications. Pre-relocation legal advice is essential.

4. Don't sign documents from the other party without legal review.

Whether informal agreements, "without prejudice" letters, or proposed orders, get them reviewed before signing. Once signed, your position is harder to change.

5. Don't make major financial decisions without disclosure.

Until both parties have made full disclosure, you don't know the full picture. Making major financial decisions (paying off the other party's debt, selling assets, restructuring superannuation) before full disclosure can substantially affect your settlement position.

6. Don't act on generic online advice.

Family law is heavily fact-specific. What was right for someone else's matter may be wrong for yours. The free 30-minute consultation gives you tailored information.

7. Don't withhold disclosure from your own lawyer.

Tell your lawyer everything — including the inconvenient parts. Lawyers can't strategise effectively with incomplete information. Information given to your lawyer is privileged; information you withhold may surface in unhelpful ways later.

8. Don't make decisions when emotionally overwhelmed.

Separation is one of the most stressful life events. Big decisions made in the first days or weeks under emotional pressure often need to be revisited. Build in time for considered decisions.

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What about children's arrangements?

Children's arrangements during separation deserve specific attention. The single most important principle: stability for the children matters.

Practical priorities:

• Maintain school continuity where possible
• Keep both parents involved in children's lives where safe to do so
• Avoid involving children in adult disputes
• Don't ask children to take sides or report on the other parent
• Maintain established routines (school, extracurricular, social) where possible

Section 60I — mediation before court:

For most parenting matters, Family Dispute Resolution is required under section 60I before initiating court proceedings. The Family Relationship Centre network provides government-subsidised mediation. Private mediation is also available.

Exceptions to section 60I:

• Family violence
• Urgency (e.g. imminent removal of child from Australia)
• Risk of child abuse
• Some other defined circumstances

Where family violence is a factor:

Family violence allegations affect both the procedural requirements (section 60I exception) and the substantive considerations (section 60CC primary considerations). If family violence is present or alleged, get legal advice promptly.

See custody and parenting lawyer cost guide →

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What about property settlement?

Property settlement is governed by section 79 of the Family Law Act 1975 (or section 90SM for de facto couples).

The four-step process:

1. Identify and value the property pool
2. Assess contributions (direct financial, indirect financial, non-financial)
3. Assess future needs under section 75(2)
4. Determine just and equitable outcome

Three pathways to resolution:

• Consent orders ($2,750 fixed fee at Fogarty Oliver Rothschild) — court-approved orders for agreed outcomes
• Binding Financial Agreement ($4,400+ per party) — private agreement, both parties need independent legal advice
• Court proceedings (hourly billing) — where agreement can't be reached

Critical deadlines:

• Married couples: 12 months from divorce order under section 44(3)
• De facto couples: 24 months from separation under section 44(5)

Don't delay. If the deadline is approaching and resolution isn't imminent, filing a protective application can preserve your rights.

See property settlement lawyer fees guide →

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What about divorce?

Divorce is a separate process from property settlement. It only terminates the marriage — it doesn't divide property or determine parenting arrangements.

Eligibility:

• Separated for at least 12 months and 1 day before filing
• Marriage irretrievably broken down
• Australian connection (citizenship, ordinary residence, or domicile)
• For marriages under 2 years, counselling certificate required

Cost:

• Court filing fee: $1,125 ($375 concession for eligible parties)
• Lawyer fixed fee: $1,500 at Fogarty Oliver Rothschild

Timing:

• Joint applications: typically 3-4 months from filing to divorce order
• Sole applications: similar timeline, plus service time on the other party

Most people get divorced after property settlement, not before. Property settlement deadlines run from the divorce order (12 months for married couples), so applying for divorce starts the clock.

See how much does divorce cost in Australia →

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What deadlines matter?

The two biggest deadlines are the property settlement time limits. Missing them is a recurring problem in Australian family law and produces avoidable legal cost when leave applications become required.

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What goes wrong in the first 90 days?

The $77K stamp duty mistake. A 2024 matter where separating spouses transferred a $1.4M Melbourne property by direct transfer without consent orders. The State Revenue Office assessed standard stamp duty of approximately $77,000. Section 44 of the Duties Act 2000 (Vic) exempts transfers pursuant to consent orders or BFA, but informal transfers don't qualify. The $77,000 stamp duty was payable. Waiting 8-16 weeks for consent orders would have saved $74,000+ net.

The unilateral relocation. A 2024 matter where one parent moved the children to Queensland the week after separation. The other parent applied urgently in the Federal Circuit and Family Court for the children's return. The court ordered the children's immediate return pending proper application. The moving parent was substantially affected in subsequent parenting orders for having acted unilaterally.

The 12-month deadline missed. A 2025 matter where the divorce had been granted 2 years earlier and the wife was now seeking property orders. The section 44(3) deadline had passed. Leave of the court was required and was contested. The matter ultimately succeeded in obtaining leave but at substantial additional cost and uncertainty.

(Client names withheld. Identifying details modified.)

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What's the practical step-by-step?

1. Day 1-7: Don't make major decisions. Document date of separation. Secure important documents. Make immediate practical living arrangements.

2. Week 1-2: Book a free 30-minute consultation with a family lawyer. Get tailored information about your specific situation.

3. Week 2-4: Update will and powers of attorney. Update beneficiary nominations. Open independent bank account. Establish independent financial arrangements.

4. Week 4-12: Engage formally with a family lawyer. Begin disclosure exchange. Plan resolution pathway (agreed, mediated, or litigated). Establish practical parenting arrangements.

5. Month 3-12: Resolve property settlement (consent orders or BFA). Resolve parenting matters (consent orders or court). Consider divorce application after 12 months separation.

6. Month 12+: Apply for divorce if not already done. Be aware of section 44(3) 12-month property settlement deadline after divorce.

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Frequently asked questions

What's the first thing I should do after separation in Australia?

Get a free 30-minute consultation with a family lawyer to understand your specific legal position. Don't make major financial or parenting decisions before getting tailored advice.

Is there a deadline for property settlement?

Yes. Married couples: 12 months from the divorce order under section 44(3) of the Family Law Act 1975. De facto couples: 24 months from separation under section 44(5). After these periods, leave of the court is required.

Can I just informally divide property without consent orders?

You can, but you lose substantial benefits. Property transferred without consent orders or BFA doesn't qualify for the section 44 Duties Act 2000 (Vic) stamp duty exemption. Superannuation can't be split informally. And the arrangement isn't legally enforceable as orders.

Should I update my will after separation?

Yes, before doing anything else. Separation doesn't automatically revoke your existing will. If it leaves everything to your former partner, that's still legally effective until you update.

Can I close our joint accounts?

Don't do this unilaterally. Discuss with a lawyer first. Closing or draining joint accounts can be characterised as asset dissipation and can trigger urgent court applications by the other party.

Do I need to attend mediation for parenting matters?

For most parenting matters, yes. Family Dispute Resolution is required under section 60I before initiating court proceedings. Exceptions apply for family violence, urgency, and certain other circumstances.

When can I apply for divorce?

After 12 months and 1 day of separation, under section 48 of the Family Law Act 1975. For marriages under 2 years, a counselling certificate is required.

Can I move interstate or overseas with the children?

Not unilaterally. Domestic relocation may require consent of the other parent or court orders. International relocation may trigger Hague Convention applications. Pre-relocation legal advice is essential.

What if there's family violence?

Intervention orders are available under the Family Violence Protection Act 2008 (Vic). Family violence affects both procedural requirements (section 60I mediation exception) and substantive considerations (section 60CC primary considerations). Get legal advice promptly if violence is present or threatened.

What about Jewish family law dimensions?

For Jewish couples, the get (religious divorce) typically runs in parallel with the civil divorce. Beth Din coordination begins during the separation period. Fogarty Oliver Rothschild has a substantial Jewish family law practice handling this integration.

How much does the first consultation cost?

At Fogarty Oliver Rothschild, the initial 30-minute consultation is free. Substantive — not a sales pitch. We discuss your situation, options, indicative pricing, and next steps. No obligation.

Should I separate "officially" somehow?

There's no official registration of separation in Australia. Separation is a factual state. Documenting the date (saved text message, email, calendar note) is sensible but no formal step is required.

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Ready to discuss your separation?

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📞 Call 0480 031 704

📧 elisa@fogartyoliverandrothschild.com.au

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