What is separation?

‘Separation’ is when it is clear to both parties that the relationship is over and you must stop being together as a couple. This can be a joint or single decision.

Sometimes it is not possible to move out of the same house whilst you and your spouse are separated. This can be because of financial considerations, unavailability of any other residence, easing the transition for any children of the marriage, or any other reasons. If this is the case, the court can still classify ‘separation’ although you both still live under the same roof.

It is important to calculate when ‘separation’ begins because, under the Family Law Act 1975 (Cth), you must have been separated by at least 12 months and 1 day to prove that the marriage has broken down irretrievably.

Separation may occur from the action or conduct of one of the parties, or it can be something that can be done in writing. It is important to note that the word “separation” does not mean physical separation, but simply the breakdown of a relationship.

Separation can only occur in the sense where one or both of the people form an intention to sever their marital or de facto relationship. There will then need to be action to follow in accordance with their intention.

In the matter of Falk (1977) FLC 90 – 247, the full court stated that “It is not possible to apply some mathematical formula to these activities and determine whether a ‘separation’ has occurred. Rather, the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.”

Just because one party leaves the home, doesn’t mean that they are separated. In the more recent case of Campbell and Cade (2012) the court found that even after the husband left the home, the couple were still not separated. This was because they continued to maintain sexual relationships, attended social functions together and had their finances still managed together.

Basically, this means that every relationship is different and you should look at how a relationship has changed as a result of the separation to see if it can indeed be referred to as a separation.

The Importance of the Separation Date

Separation must be proven if the other party disputes the date of separation. We always recommend that you confirm the separation in writing and keep this as a record of the separation date. This can be done by an email, Facebook or text message.

With de facto relationships, you can only make a claim for a property settlement within two years of the date of separation. If you file your matter after the two-year anniversary of the separation, you may not be able to apply for any orders from the court. You will need to ask the court for leave to file your application and the court will want to know why you did not file anything in the two years since separation.

The separation date is also important when you are filing for divorce.

On your Application for Divorce. you will need to swear a statement saying that you have been separated from your spouse for at least 12 months before you file your Application for Divorce. If you do not do this, the Court will not grant your divorce.

Got questions? Speak to one of our lawyers.

Click on the links below to find out further information about what your legal options are and what you need to consider when separating.

Remember if you have a question about a particular issue, you can contact our solicitors for advice by phone or make a website enquiry directly to our office.


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