Relationships can be challenging, and every couple goes through ups and downs. Sometimes, however, the ‘downs’ become too overwhelming, and it becomes necessary to have some space and a break from one another, which is what a trial separation provides. A trial separation allows both partners to think clearly about what comes next in their relationship.

But did you know that even a trial separation can have legal consequences, just like a permanent breakup has?

To understand these differences, let’s explore what a trial separation involves and how it varies from a permanent breakup.

What is a Trial Separation?

Under Australian law, a trial separation is a temporary and informal arrangement when a couple (either married or de facto) live apart while they think about their relationship’s future.

There are no forms or documentation to fill out; nothing that makes the separation legal, unlike a permanent or legal separation, which marks the formal end of a relationship under the Family Law Act 1975.

Does a Trial Separation Count as an Official Separation Under Australian Law?

Under Australian family law, what matters is not whether you label the separation a trial or permanent one, but whether one or both parties have an intention to end the relationship for good and whether they have communicated that intention to the other party.

If you and your partner are living separately, are no longer acting like a couple, and if you have told your partner the marriage is over, or vice versa, a court could very well treat the date of separation as an official separation.

In short, your separation date is significant, as it can determine:

• When your 12-month separation officially begins.
• The time period and limits for property settlement applications (12 months after finalisation of a divorce for married couples, and 2 years after separation for de facto couples).
• Asset, liability and inheritance negotiations.
• Centrelink and government payment entitlements.

The Key Differences Between Trial Separation and a Permanent Separation

​The 3-Month Reconciliation Rule to Be Aware of​

Australian family law gives couples the chance to give their relationship another go. If you separate and then reconcile, your 12-month separation period is put on hold if the reconciliation period is less than 3 months.

If the reconciliation period is longer than 3 months, the 12-month clock needs to restart. 

Can You Have a Trial Separation While Still Living Together?

The high cost of living and housing makes separation under one roof more common than most people realise.

While it is legally recognised in Australia, it also comes with challenges and may not be suitable for every separated couple.

If you apply for a divorce or need to establish your exact separation date for property settlement purposes, you will need to prove that you are living separate lives under the same roof.

You may need to provide evidence such as:

• Separate finances and household expenses
• Sleeping in different rooms
• Telling government organisations (Centrelink) about the changes in your circumstances (if you fail to do this, it can lead to legal, financial and custodial issues)
• Not acting or presenting as a couple in real life or on social media

What Happens to Property and Finances During a Trial Separation?

During a trial separation, there is no legal obligation to divide assets or settle property disputes.

But it’s important to note that everything that occurs during a trial separation can affect your property and finances if the separation does become permanent.

Here are some potential issues that can arise:

Joint Bank Accounts and Shared Debts

Joint bank accounts can continue to be used during a trial separation. However, be aware that any transactions made during this period may come under scrutiny in the future.

The Family Home

If both parties are on the mortgage, they are both responsible for the repayments. Decisions about who lives on the property need to be clearly documented to avoid confusion.

Superannuation

Under the Family Law Act 1975, superannuation is treated as property and can be divided as part of the property settlement. However, during a trial separation, the super continues to accumulate in each party’s name.

Superannuation splitting only occurs after a separation becomes permanent and as part of the formal settlement process.

Assets and Debts

Any assets and debts acquired during a trial separation may still be included in

The ‘property pool’ refers to all assets and debts, whether acquired before or during the relationship—including those acquired during a trial separation. Thus, it is important to seek legal advice early.

​What Happens to the Children During a Trial Separation?

A trial separation raises many questions about what happens to the children. Where will they live? How often will they see each parent? Who makes important decisions about their schooling and health?

Although a formal parenting plan is not legally required under Australian family law, we strongly recommend having one put in place. A written agreement can reduce conflict and provide stability for the whole family.

If you feel you are in an unsafe situation, you can apply to the Federal Circuit and Family Court of Australia for parenting orders.

The interests and safety of the children will always be made a priority.

Common Mistakes Made During a Trial Separation

Some of the most common mistakes people make during a trial separation include:

Assuming that Nothing is Official, So Nothing Matters

A trial separation may be informal, but all the decisions made during this time, and how you conduct yourself, are important if the separation becomes permanent.

Not Documenting Anything

Making agreements without documenting them can be a big mistake and a source of conflict.

You really need to document everything you can, even if you provide proof of an email thread.

Assuming a Trial Separation Always Leads to Divorce

Sometimes, a trial separation is just what a relationship needs, and it can lead to reconciliation rather than a permanent separation/divorce.

It is still recommended to seek legal advice and document all the decisions made.

Failing to Update Important Services

If your relationship status changes, you have a responsibility to update government services and agencies, even if it is just a temporary change.

If you fail to disclose your current situation, you may be required to make repayments.

Protecting Yourself During a Trial Separation

Make Decisions Together and Document Everything

​You and your partner need to sit down and make decisions together, including living arrangements, custody arrangements and finances.

Make sure you document everything.

Hire Legal Help

Early legal advice can help you understand the steps you need to take, especially if you know your trial separation may lead to a divorce. Having the benefit of legal advice can prevent costly mistakes from being made in the future.

Notify All Relevant Parties

Check your obligations with your bank, your accountant, your employer, and any Services Australia entities, and notify them of any changes to your relationship and circumstances.

Keep Important Records

Save everything you can – bank statements, any documented agreements, emails and correspondence between you and your partner, and legal representation.

This documentation will be incredibly important if your temporary separation becomes permanent.

Think about a Binding Financial Agreement or Consent Orders

If you and your partner are able to reach an agreement regarding financial matters during the trial separation, you should make it formal by signing a Binding Financial Agreement (BFA) or Consent Orders, which legally protect both parties.

Review Your Will

Separation is a good time to look over your Will and the Powers of Attorney (somebody appointed by you to manage legal and financial affairs).

You may wish to make changes to reflect your current situation.

Costs to Be Aware of

Here are some associated costs with trial and permanent separations that you should be aware of:

​Note that all costs are estimates and may differ depending on your circumstances and the complexities of your case.

Please contact Meredith Family Lawyers for financial advice and information at 1300 537 306.

At Meredith Family Lawyers, we will help you understand the differences between a trial separation and a permanent separation, as well as the complexities and important decisions involved with both.

We ensure that all the decisions made during a trial separation are done ‘by the book’, so that no mistakes are made, and you have a better chance of a successful outcome in the event of a divorce.

Meredith Family Lawyers are here to ensure you are informed and protected throughout every step. Contact us at 1300 537 306 to find out more about trial and permanent separation.

FAQs

Does a Trial Separation Affect Any Government Payments?

It may. If your relationship status changes, your eligibility for certain payments may change.

You need to keep Centrelink or other government services updated.

Does a Trial Separation Count as Our Date of Separation for Divorce Purposes?

In some cases, yes. The date of separation depends more on the couple’s intentions than on the label you give it.

If your behaviour and intention during your trial separation are consistent with a permanent one, a court may treat it as such.

Can We Document What Happens During a Trial Separation?

We strongly recommend that you do so. Although private agreements and documentation are not legally enforceable, they provide a clear record of the agreements made between the parties and can help reduce any conflict.

Do I Need a Lawyer for a Trial Separation?

There is no legal obligation to hire a lawyer during a trial separation, but as there are many legal and financial consequences, getting legal advice is strongly encouraged.

What if We Reconcile During a Trial Separation?

If you reconcile for less than 3 months, the original separation timeline remains in place and won’t affect the divorce process.

If your reconciliation lasts for longer than 3 months, the timeline will be reset.

Can a Trial Separation Lead to a Binding Financial Agreement or a Consent Order?

If you and your partner agree on financial, property or custody arrangements during the trial separation, and you know that you’re heading for a divorce, you can make sure that they’re formalised and legally binding with a Binding Financial Agreement or a Consent Order.