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Family Law

Separation

Separation can be difficult at the best of times, we understand and sympathise with all scenarios. Separation, in law, is defined as the bringing to an end of a marriage or de facto relationship. You cannot register a separation under Australian Family Law.

Separation, in practical terms, is a decision made by one party to a relationship (it need not be mutual) to end that relationship, and communicating the end of the relationship to the other party. The date of separation in a family law context can have relevance not only in relation to divorce, but also in relation to property matters.

In relation to marriage, it is not essential that separation lead to divorce, but in the majority of cases it does. Quite often the date of separation is easy to determine, as it involves one party moving out of a shared residence. However, less straightforward are those matters where parties continue to live together under the one roof. For a person to apply for a divorce, they must be able to demonstrate to the court that they have been separated for 12 months, and it is where the date of separation is not easily identifiable that difficulties can arise.

Assuming that there has been no clear indication of separation (such as a letter, email or text message) or there has been no acceptance of or confirmation of separation from the other party, then the court, in the context of a divorce, will examine the day to day lives of the parties to determine whether separation has actually taken place. Some of the factors that the court will look at to determine whether a couple has in fact separated include:

  • Whether or not the parties performed domestic duties together or separately such as cleaning and washing for each other;
  • Whether or not the parties separated their financial affairs to any extent after the date of separation;
  • Whether the parties share a room or slept in separate rooms after the alleged date of separation;
  • Whether or not either of the parties lodged or signed any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single person, as opposed to a person in a relationship;
  • Whether or not the parties continued to be intimate after the date of alleged separation; and
  • Whether or not it was publicly known (such as by telling friends and family), that the parties had separated.

The date of, and circumstances of, separation are also relevant to property matters, either for married couples or de factos. In terms of married couples, the court will examine the contributions made by each party from the date of separation when determining how assets may be divided. Assets that came into existence after the separation process had begun may be treated differently to those that were accumulated during the course of the relationship, and if that asset is substantial, then it may cause a material difference to each party’s financial situation. Therefore, if there is no ambiguity in relation to the date of separation then it is likely that any disputes that arise with respect to these types of assets will be easily dealt with.

The same separation law stands for de facto matters, with two additional relevant factors. For a person to seek a property adjustment from the other party as a de facto, an application must be brought within 2 years of the date of separation. Additionally, a person can only, except in limited circumstances, bring an application for property adjustment if the relationship is at least 2 years in length. With both of these factors, the date of separation assumes significant importance, so again, any evidence that a party can bring forward to remove that ambiguity will be of assistance to either bringing an application for property adjustment as a de facto, or seeking to defeat such an application.

What you need to know

  • Parties are “separated” when at least one person communicates their intention to the other party that the relationship has ended, and both parties no longer live together as husband and wife. This can happen when one of the parties’ moves out of the home, or parties can be “separated” under the one roof if they are leading separate lives there.

  • It is important to see a lawyer if you are considering a separation or as soon as you separate from your partner. Planning and prompt action can assist to ensure you know and understand your rights, obligations and entitlements.

 More about separation

Read some of our colleague Patrick Parkinson’s articles on the subject.

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