separation

Separation in Family Law is defined as the bringing to an end of a marriage or de facto relationship.There is no need or ability to register a separation under Australian Family Law.

Separation is a fact which must be proven if it is disputed by the other party at a later time. Therefore, it is a good idea to confirm the separation in writing, even if this is via text message that can be saved, at or shortly after the time of separation. Often divorce cases and cases for property settlement in de facto relationships can turn upon whether or not a party can prove that separation occurred on a particular date.

In the case of a divorce, the date of separation is recorded on the Application for Divorce and is sworn or affirmed to be true and correct by the Applicant. If you cannot prove you had separated from your spouse at least 12 months before you file your Application for Divorce, the Court will not grant your divorce.

In the case of a de facto relationship, particularly where the relationship ends on or about the two year mark, whether or not a property settlement is available can depend on which side of the two year mark the separation took place. If the de facto relationship was less than two years long the Court may have no jurisdiction under the Family Law Act to provide a property settlement. There may be alternate remedies available or another basis other than the two year requirement to show that a de facto relationship existed. Also, there is also a two year limitation period in which to bring proceedings from the time of separation. In such cases, again, the date of separation can be significant.

Separation can take place under one roof and it can also be a gradual process. The Court will need to examine a number of factors to determine when and if a separation has taken place. Those factors can include:

• Whether the parties slept in separate rooms or together after the alleged date of separation;
• Whether or not the parties performed domestic duties such as cooking and washing for each other after the alleged date of separation;
• Whether or not the parties separated their financial affairs to any extent after the 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.

If you have any queries in relation to separation or would like to speak to one of our family law solicitors, please do not hesitate to contact us, or send us an email by clicking on the appropriate button on the right hand side at the top or bottom of this page.