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Marriage Separation

Separation in relation to married couples means the breakdown of the marriage. It takes two people to enter into a marriage but it only requires one party to end it. The date of separation is a factual (not a legal) issue. However, it may have significant importance in relation to the division of matrimonial assets and divorce.

Separation is not the same as divorce. Separation is the factual ending of the marriage. A divorce is the legal ending of the marriage. Separated couples are still legally married and will continue to be legally married until they obtain a divorce from the Federal Circuit and Family Court of Australia (FCFCA).

You cannot apply for a divorce until you have been separated for at least 12 months. You can, however, start negotiations for a financial settlement or discuss arrangements for the care of children immediately after separation.

How to separate

A separation cannot be registered. Therefore, spouses have to rely on factual evidence to prove the date that separation occurred. The date of separation is usually not disputed. Sometimes it is the date when a major event takes place marking the end of the marital relationship. For example, when one party moves out of the house.

Separation does not have to be physical. You and your spouse may still be living in the matrimonial home but already be separated. This is called “separation under one roof”. If you are separated under one roof, you may be required to prove the following to show that you are separated:

  • whether you and your spouse share the same bedroom;
  • whether a sexual relationship exists;
  • how the finances were divided during the marriage and how they are divided now;
  • how the household duties were divided during the marriage and how they are divided now;
  • whether you and your spouse present yourselves as a couple to family and friends;
  • whether you and your spouse still go on holiday together.

When you separate, it is important that you communicate your intention to your spouse. It is recommended that you communicate your intention in writing, either via an email or a text message, so that you have proof of it.

The date of separation may be important for various reasons. You are required to be separated for a period of no less than 12 months before you can apply for a divorce. The law recognises that short periods of reconciliation will not break the period of separation. Another reason for the importance of the date of separation is that when a divorce is granted, a one-year time limit starts to run within which you must initiate court proceedings for property division if you are going to do so.

Before you make the decision to separate, it is important to think about taking steps to put you in a strong position in terms of any property or parenting disputes that may arise out of the separation. Therefore, it is recommended that you speak to a family lawyer before you separate.

Separation and children

Separation can be a stressful time in your life. It can also be stressful for your children. When you separate, you are required to make parenting arrangements with your former partner.

The first step for making parenting arrangements should be, if possible, to discuss it with your former spouse. In certain circumstances, it may not be possible to contact your former spouse due to an Intervention Order (IVO). However, most IVOs have an exception which allows parents to communicate via text, email or letter to make arrangements for the children. If in doubt you may need to seek legal advice before communicating. Where is no IVO, but there is some antagonism between you it may be prudent to consider communicating in writing so that there is a record of what was said, but in most cases, more progress is made by speaking directly.

If you are not able to agree to an arrangement amongst yourselves, are restricted by an IVO or simply cannot communicate with your former spouse, then you may attend a Family Dispute Resolution mediation. These are conducted by many providers, notably Relationships Australia and LifeWorks. These providers are government-funded organisations but often have long waiting periods. If you require an urgent mediation, then you may have to retain the services of a privately funded mediator.

In some circumstances, mediation may not be appropriate, for example where there is a power imbalance in the relationship. Usually, mediators can make a decision as to whether or not your matter is appropriate for mediation. If mediation is not appropriate in your situation, seek legal help from a family lawyer. Your lawyer may be able to give you options as to how best to proceed with the negotiations, things to be aware of while you are negotiating and how to press forward if no progress is being made.

For advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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