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The dangers of separating without a divorce

It is not uncommon for married couples to separate and not seek a divorce for many months, years, or sometimes not at all. However, it is important that separated couples are aware of the dangers of not finalising their divorce.

Estate Planning

If you do not amend your will to exclude your spouse, your estate will still pass to them according to the terms you had previously dictated in your will. This is so regardless of whether you are still together.

If you die without a Will, “intestacy provisions” will apply. Intestacy provisions generally provide that an intestate estate be distributed initially between your spouse and your children. If you die intestate and you do not have children, your estranged spouse may be entitled to the entirety of your estate in first instance.

In most cases, the deceased would invariably rather their estate passed to other members of their family, for example, brothers or sisters, or they may even elect a charity to distribute their estate to. Without a will in place dictating such terms, however, your estranged spouse from years gone by may stand to inherit your entire estate. This could be so even when you have both finalised a property settlement, and even where you have both repartnered.


A binding death benefit nomination is a legally binding nomination that allows you to advise the trustee of your superfund who is to receive your superannuation benefit in the event of your death. More often than not, one will nominate their spouse to receive the binding death benefit nomination. This must be directly amended with your superfund upon separating from your partner, otherwise, as is the case with a will, your super fund will also fall to your spouse as the nominated beneficiary.

Future Marriage

Finally, and most obviously, you cannot re-marry until your divorce from your previous marriage has been finalised. As a divorce typically takes several months to have finalised, it is best to file for divorce in a timely manner, particularly if you have repartnered and are considering re-marrying.