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What is separation
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.