Separation, in legal terms, can be defined as the end of a marriage or de facto relationship. Separation cannot be registered under Australian Family law.

A separation could also be thought of as a decision made by one party to end a relationship, and that decision is communicated to the other party in the relationship. The date of separation is important as it can be applied in divorce and property matters depending on the circumstances. The date of separation in a family law context can have relevance in relation to divorce as well as property matters.

In cases of marriage, separation does not have to necessarily lead to divorce.  While the date of separation is easy to discern when a party leaves a shared residence, cases where parties continue to live together give rise to complexity. This is because for a person to apply for divorce, the court must be convinced that the couple has been separated for 12 months. In cases of separation, this may not be ascertainable.

In cases where separation is not clearly indicated by the facts, the court will examine the day-to-day lives of the parties to determine whether separation has taken place. Factors that the court will look at include:

  • Whether the parties performed domestic duties together or separately 
  • Whether the parties separated their financial affairs to any extent after the date of separation;
  • Whether the parties share a room or slept in separate rooms after the alleged date of separation;
  • Whether the parties lodged or signed any documents informing government agencies of the separation, as opposed to a person in a relationship;
  • Whether not the parties continued to be intimate after the date of alleged separation; and
  • Whether it was publicly known, that the parties had separated.

In property matters, the circumstances and date of separation are relevant to both married couples and de facto relationships. In terms of married couples, the court will examine contributions made by each party from the date of separation when determining the division of assets. Assets that have been gained after the beginning of the separation process may be treated differently to those that were accumulated during the relationship, and if that asset is of a substantial size, then it may cause a tangible difference to each party’s financial situation. Therefore, if the separation date is clear, the process of asset division is made simpler.

When it comes to de facto relationships, the same separation law stands with two additional factors. To seek a property adjustment from the other party, an application must be brought within two years of the separation date. Furthermore, except in limited circumstances, an individual may bring an application for property adjustment if the relationship is at least two years in length. For both factors, the separation date is important. Therefore, any evidence that removes ambiguity will be of assistance in the smooth processing of an application for property adjustment.

Next Steps

Due to the legal implications of separation, contacting a lawyer is essential. Prompt access to legal advice is crucial in ensuring you understand your rights, obligations and entitlement.