Divorce is not the first step. It is nearly the last.

The ground rules

Nine things about separating in Australia.

None of this requires a lawyer to understand. All of it is easier to deal with before positions harden.

1. 01

   Separation is a state of affairs, not an event

   There is no form to lodge and nothing to register. Separation means the marital relationship has broken down as a whole, and it is usually taken to begin when the couple stop living together as a couple.

   Where it is disputed, the court generally accepts one party's evidence of when it happened. Where it is not disputed, nobody examines it at all.

2. 02

   You can be separated under one roof

   Plenty of couples separate months before either can afford to move out. That counts, but because it is harder to demonstrate, the court looks at how you actually lived.

   • Whether you stopped sleeping together.
   • Whether you stopped sharing social activities.
   • Whether you separated your finances.
   • Whether you told each other the relationship was over.
   • Whether you told other people — family, friends, your employer.
3. 03

   A short reconciliation does not reset the clock

   If you resume living together and it lasts no more than three months, the earlier and later periods of separation can be added together toward the twelve months needed for a divorce.

   Longer than three months and the clock restarts. This is worth knowing before a trial reconciliation, not after it.

4. 04

   Divorce only ends the marriage

   It does not divide property, it does not settle parenting, and it does not resolve child support. A divorce order does one thing: it ends the legal status of being married.

   What it does change is your deadlines. Once a divorce takes effect you have twelve months to bring a property or spousal maintenance claim; after that you need the court's permission, which is neither automatic nor cheap. Conversely, there is no deadline at all on parenting applications.

5. 05

   So settle the money and the children first

   Nothing stops you resolving property and parenting immediately after separation, long before the twelve months is up and whether or not you ever apply for a divorce. For most couples that is the right order.

   The reason is practical. Mediating while the twelve months runs means the agreement is documented and the deadline is irrelevant. Waiting until the divorce is through, then starting to negotiate, means doing it with a clock running.

6. 06

   De facto couples have a different deadline

   There is no divorce to wait for, and the clock is shorter: generally two years from separation to bring a property or maintenance application. Out of time you need the court's leave.

   Eligibility turns on the relationship itself — broadly, at least two years of cohabitation, or a child of the relationship, or substantial contributions such that serious injustice would result. The same regime covers opposite-sex and same-sex couples.

7. 07

   Most parents agree, and most agreements are informal

   The great majority of separating parents work out arrangements for their children without a court and often without lawyers. That is the normal outcome, not the lucky one.

   An informal agreement leaves both parents with equal parental responsibility and is not enforceable. A parenting plan under s63C is written, dated and signed, and a court must consider the most recent one — but it is still not enforceable. Consent orders are enforceable, and are as final as a decision after a hearing. Many parents deliberately start with a plan because it can be changed without going back to court.

8. 08

   Court is slow, and it cannot fix a relationship

   Proceedings damage the relationship between parents and are stressful for everyone, children included. A court can also make orders neither parent asked for.

   And there is a limit to what an order can achieve. It can apportion children's time between two households. It cannot change either parent's attitude to the other — which is usually the actual problem, and the thing mediation can sometimes move.

9. 09

   Review your will

   Separation does not revoke a will. Divorce does not revoke one either — but it does terminate gifts to a former spouse and any appointment of them as executor, trustee or guardian.

   That leaves a gap in the middle: between separation and divorce, a will made during the marriage usually still operates in full. People die in that window. It is a short conversation and worth having early.