ACT - Marriage Separation


Marriage separation is the irretrievable (final) breakdown of a marriage. It is important to remember that “separated” is different to “divorced”. Unlike in American TV shows, you do not automatically get a divorce when you separate.

In Australia you cannot register a separation, however it may be necessary to provide evidence of when your separation occurred when you apply to the Court for a divorce or for orders relating to the division of property during the property settlement process.

In a lot of cases, there will be no dispute regarding the date of separation. It is often marked by an event such as one party moving out, and living somewhere else. This is not always the case and therefore it is recommended that you keep a record of the date that you consider the marriage to have come to an end and to communicate the separation to your spouse in writing, for example by text message or email, ensuring that you keep a copy of the records. This is particularly relevant where parties may continue to reside in the former matrimonial home after separation.

To apply for a divorce, you must have been separated for at least 12 months before the date that you file your application. If your spouse disputes the date of separation and claims that you have not been separated for 12 months, and you cannot prove otherwise, your divorce will not be granted.

It is possible to be separated but still live in the same house as your former spouse, commonly referred to as “separated under the one roof”. If the court is required to determine whether or when the parties actually separated they will look at a number of factors including:

*Whether the parties continued to share a bedroom and/or maintain a sexual relationship after the alleged date of separation;

*How domestic duties (cooking, cleaning, laundry, gardening etc) were shared after the alleged date of separation;

*The extent to which finances were separated;

*Whether either party communicated the separation to third parties such as family and friend In particular, parties may rely on posts made on social media as evidence of the alleged date of separation;

*Whether either party made an application to Centrelink or updated their status to single with Centrelink or the Australian Tax Office.

If you are currently married and thinking about separating, or have already separated, our experienced team of family lawyers at Armstrong Legal can advise you on the next steps to be taken. You can contact them on 1300 038 223.

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