The direct answer: separating in Australia does not require going to court first. Married couples (and de facto partners) can reach agreement on arrangements for children, property division, the home loan and superannuation, either themselves or through mediation, and then formalise it in a parenting plan or consent orders. You only need to apply to the Federal Circuit and Family Court of Australia for orders if you cannot agree, or if there is a safety risk. Divorce itself only ends the marriage; children and property are dealt with separately.
This guide follows the order in which separation usually unfolds: safety first, then the separation date and communication, then children, property and finances, with a checklist at the end. It reflects the law as amended in 2024 and 2025.
Key points
- Separation does not require moving out: you can be separated under one roof, but you will need evidence of it.
- To apply for divorce you must have been separated for at least 12 months; if married for less than two years, you generally must attend counselling first.
- Since May 2024 the law no longer presumes 'equal shared parental responsibility'; everything centres on the child's best interests and safety.
- Since June 2025, courts dividing property can consider the economic effect of family violence and make specific orders about pets.
- Property applications have time limits: within 12 months of a divorce taking effect, or within two years of separation for de facto couples.
- Most parenting disputes must go through family dispute resolution (FDR) before court, except where there is family violence or urgency.
1. Safety first: family violence and separation
At its core, family violence is about control. It is not only physical harm; it also includes sexual violence, threats and intimidation, humiliation and belittling, isolating someone from others, monitoring their phone, using religion or cultural tradition to pressure them, and economic control, such as denying access to bank accounts, forcing someone to sign for a loan or withholding their passport. Research and practice both show that the period when separation is raised is often the most dangerous, because the abusive person feels they are losing control.
If you are in immediate danger, call 000. In Victoria, the safe steps 24-hour line is 1800 015 188, and the national 1800RESPECT line is 1800 737 732; both can be accessed in Chinese through an interpreter. You can apply to the Magistrates' Court of Victoria for a family violence intervention order, and police can also apply on your behalf. Before raising separation, plan a safe place to stay, and how you will secure your documents, money and the children.
People in the partner visa pathway may, in some circumstances, be able to continue their application under the family violence provisions even if the relationship has ended because of family violence, so no one should stay in an unsafe relationship for the sake of a visa; but get immigration advice early. Where there is family violence, mediation needs special safety arrangements and is sometimes not appropriate, and the court puts safety first when deciding arrangements for children and property.
2. What separation means legally: the separation date and separation under one roof
Legally, separation occurs when at least one person decides to end the relationship and communicates this to the other by words or conduct. No document or registration is needed, but the separation date matters: it determines when you can apply for divorce and can affect how property is assessed. Write down the date and keep a record of the relevant conversations or messages.
Many Chinese families continue to live together after separating because of mortgage pressure, the children or concern about appearances. This is legally possible, but when applying for divorce you must prove by affidavit that you were separated despite living together, usually supported by an affidavit from a friend or relative, showing things like sleeping in separate rooms, no longer socialising as a couple, separate finances, doing your own household tasks and having told family and friends. While living together, agree up front on who uses which rooms, how costs are shared, how the children are cared for and when one of you will move out. Explain the situation honestly to the children in an age-appropriate way so they are not confused and do not blame themselves.
To apply for divorce, one of you must be an Australian citizen, regard Australia as home and intend to live here indefinitely, or have ordinarily lived in Australia for 12 months. A marriage registered in China or another country can generally be ended by divorce in Australia. A divorce order takes effect one month and one day after it is made. If you need to rely on an Australian divorce in China, a separate recognition process may be needed.
3. Raising it, communicating and looking after yourself
How separation is raised often determines whether what follows is calm negotiation or a long fight. If there are no safety concerns, consider the following:
- Plan what you will say beforehand, and state your decision in 'I' terms without raking up the past or blaming.
- Expect anger, denial or a plea to reconcile; stay calm and do not offer false hope.
- In the first conversation, cover only short-term arrangements such as who lives where and school runs, and leave the details for later.
- Give each other space afterwards. Later discussions can be held somewhere neutral, or in writing.
- If direct communication is too hard, use a mediator, lawyer or trusted third party to pass on messages.
Be honest about finances throughout. Hiding assets not only destroys trust; the Family Law Act now expressly sets out a duty of disclosure, and breaching it can lead to costs orders or even a finding of contempt.
Looking after yourself and the people around you
Separation is a long transition. Keep up sleep, exercise and a routine, deal with one thing at a time, and keep track of important dates, appointments and correspondence. Seeing a counsellor when you need to is nothing to be ashamed of. Staying flexible and being willing to adjust arrangements as circumstances change makes the process much smoother.
If a friend is going through separation: listen more and judge less; offer practical help such as school pick-ups, meals or errands; respect their privacy, do not spread details and do not volunteer legal advice; stay in regular contact; and encourage them to seek professional support. If you suspect a friend is experiencing family violence, gently express your concern and help them contact safe steps or the police.
4. Children: parenting plans, consent orders and court orders
Amendments that took effect on 6 May 2024 removed the presumption of 'equal shared parental responsibility'. The court now asks one question: what arrangements are in this child's best interests? The considerations include the safety of the child and their carers, the child's views, the child's developmental, psychological, emotional and cultural needs (including their connection to Chinese culture and language), each parent's capacity to meet those needs, and the benefit of maintaining relationships with parents and other relatives such as grandparents where it is safe. This is consistent with the UN Convention on the Rights of the Child: children have a right to express their views, given weight according to their age and maturity.
Parents have three ways to settle arrangements:
- Parenting plan: a written agreement signed and dated by both parents. It is flexible and can be changed at any time, but it is not legally enforceable.
- Consent orders: once you agree, you ask the court to approve the terms; they have the same force as orders made after a hearing and can be enforced.
- Parenting orders made by the court: a judge decides when you cannot agree. This takes longer, costs more, and the result may not fit your family's circumstances.
A good arrangement should spell out who decides major matters such as education, health, religion and culture, and whether these must be decided jointly; the weekday and weekend living schedule; how school holidays, Lunar New Year, Mid-Autumn Festival, Christmas, birthdays, Father's Day and Mother's Day are handled and whether they rotate each year; handover places and notice periods; and what happens if a parent goes overseas for a long period or moves. Special occasions matter emotionally to children, so discuss gifts, travel and family gatherings early, and focus on time together rather than material things.
Some parents use 'nesting' early on: the children stay in the family home and the parents take turns living there. It gives children stability, but it requires good cooperation and a plan for where each parent lives and how costs are shared during their off-weeks. Also note: do not take children overseas without the other parent's written consent or a court order; taking a child out of Australia while proceedings are on foot without permission can be a criminal offence. Child support is generally assessed through Services Australia, separately from parenting arrangements.
5. Property division: there is no fixed percentage
People often talk of a '60/40' or '70/30' split, but family law has no fixed percentage. The court follows four steps, written into the Act from 10 June 2025: identify all assets, liabilities and financial resources of both parties (including those overseas); assess each party's contributions, including direct financial contributions such as income, gifts or inheritances from parents, renovating the home, and non-financial contributions such as caring for children and the household; then consider each party's future needs, such as age, health, earning capacity and care of children; and finally decide whether the overall result is just and equitable.
The 2025 amendments also make clear that the court can consider the economic effect of family violence that a party experienced, and any material wastage of property caused intentionally or recklessly by a party. Pets (called companion animals in the Act) are now dealt with separately: the court can order that one party owns the animal, that it be transferred to another person with their consent, or that it be sold, but it will not order shared care, and it will consider any history of abuse towards the animal and who is able to care for it. If you want to share care of a pet, set out the responsibilities, costs, holidays and what happens if one of you is away for a long time in your own agreement.
An agreement can be formalised through consent orders or a binding financial agreement. Verbal or informal arrangements are not binding and may be overturned later.
6. The home loan, superannuation and day-to-day finances
Home loan: separation does not change your obligations to the bank; each borrower on a joint loan is responsible for the whole debt. Tell the lender promptly, ask that major transactions require both signatures where appropriate, and keep up repayments to protect your credit. The usual options are: one party refinances and buys out the other's share (subject to the lender's income and credit assessment); the property is sold, the loan repaid and the balance divided; or the property is kept for a period. Whichever you choose, record it in your property agreement.
Superannuation: super is property that can be divided through a superannuation split, transferring an amount between the parties' accounts, but it generally still cannot be accessed until a condition of release such as retirement is met. Before splitting, obtain a valuation from the fund and understand the tax and fee effects. Women, who on average live longer and often have less super because of caring responsibilities, should pay particular attention to this.
Day-to-day finances: separate emotion from financial decisions; list your assets, joint debts, income and expenses; make a new budget that covers housing, food, the children and health first; gradually build an emergency fund; and pay down high-interest debt first. Look into child support, family payments and rent assistance through Services Australia, and spousal maintenance where appropriate. Separation does not automatically revoke a will, so update your will, enduring power of attorney and superannuation beneficiary nominations early.
7. Mediation and family dispute resolution (FDR)
In mediation, the parties make their own decisions with the help of a neutral mediator. The usual process is: both agree to take part and choose a mediator; the mediator meets each person separately beforehand and screens for safety; ground rules on confidentiality and communication are set; each person outlines their concerns; underlying needs and interests are identified; options are generated and negotiated; and any agreement is written up, with lawyers then turning it into a parenting plan or consent orders. Mediation can be face to face, in separate rooms (shuttle) or online, and can be conducted in Chinese.
Before applying to the court for parenting orders, you generally must first attend FDR with a registered family dispute resolution practitioner and obtain a section 60I certificate, which is valid for 12 months. Exemptions apply where there is family violence, child abuse or urgency. Property disputes do not need this certificate, but the court rules still require you to try to resolve matters before filing. The Family Relationship Advice Line (1800 050 321) can provide referrals.
Separation often needs a support team: a family lawyer to protect your interests and a barrister to appear in court if needed; an accountant to value assets and businesses; a financial adviser to plan ahead; a psychologist or relationship counsellor to help with emotions and co-parenting; and an immigration lawyer where visas are involved.
8. Practical separation checklist
- Confirm your and your children's safety, and keep emergency numbers and a safety plan.
- Record the separation date and evidence of separation if still living together.
- Back up ID, passports, the marriage certificate and children's birth certificates.
- Collect recent bank statements, tax returns, payslips, property and loan documents, superannuation statements, and records of overseas assets, companies and trusts.
- Notify the bank and review joint accounts, credit cards and loans.
- Prepare a new budget and look into support from Services Australia.
- Agree short-term living and children's arrangements with the other parent.
- See a family lawyer early to understand your rights and time limits, and consider mediation.
- Formalise agreements: a parenting plan, consent orders or a binding financial agreement.
- Update your will, enduring power of attorney and superannuation beneficiary nominations.
Related reading
Frequently asked questions
How soon after separating can I divorce?
You must be separated for at least 12 months before applying; time separated under one roof can count, but you need affidavit evidence. If you were married for less than two years, you generally must first attend counselling and obtain a certificate. A divorce order takes effect one month and one day after it is made.
Do children automatically spend equal time with each parent?
No. Since the 2024 amendments, the law no longer presumes equal shared parental responsibility, and there is no default of equal time. Arrangements depend on the child's best interests, with safety the first consideration.
Is property or savings in China included?
When dealing with property, the Australian family courts consider both parties' assets, liabilities and financial resources worldwide, including real estate and savings in China, Hong Kong or Southeast Asia. Both parties must make full disclosure. Enforcing Australian orders overseas may require separate local steps.
Is there a time limit for property settlement?
Yes. Married couples must apply for property or spousal maintenance orders within 12 months of the divorce taking effect, and de facto couples within two years of separation. After that you need the court's permission, which is not guaranteed.
What happens to pets on separation?
Since June 2025, the court can order that a pet belongs to one party, is transferred to another person with their consent, or is sold, but it will not order shared care. If you both want to share care, set this out in your own agreement.
We were not married. Do these rules apply?
Mostly, yes. In Victoria, de facto couples are covered by the Family Law Act 1975 for children and property, but there is no divorce, and the time limit for property applications is two years after separation. Whether a de facto relationship existed depends on factors such as how long you lived together and your financial arrangements.
Chua Tan Associates has practised in Melbourne since 1990, advising in Mandarin, Cantonese and English on separation, divorce, property settlement, parenting arrangements and spousal maintenance. Justin Chua is a nationally accredited mediator and Family Dispute Resolution Practitioner and can help both parties try to reach agreement first. For help, call 03 9602 3988 or contact us online. We can meet at our Melbourne CBD office or by video.
This page is general information only and is not legal advice.
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