Separation from a spouse is not the same as divorce. Divorce is a court order formally bringing an end to a marriage. Separation is factual rather than legal. Separation is not something that can be registered. Therefore, spouses have to rely on evidence to prove the date of separation.
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 matrimonial home.
However, separation does not always require physical separation. You and your spouse may be separated but still be living in the matrimonial home. This is called separation ‘under the one roof’. If you are separated under the 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 now;
- How the household duties were divided during the marriage and how they are now;
- Whether you and your spouse present yourselves as a couple to family and friends;
- Whether you and your spouse went on holiday together during the marriage and whether you do now.
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 importance of the date of separation is when divorce is granted, a one-year time limit starts to run within which you are required to initiate court proceedings for property division.
Before you make the decision to separate, it is important to take some necessary steps to put you in a better position in terms of property and parenting dispute that may arise out of the separation. Therefore, it is recommended that you speak to a family law solicitor and get valuable advice before you separate.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.