Date of separation

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When meeting with a family lawyer, one of the first questions you will be asked is “when did you separate?” For some separating couples, there is a very clear date of separation – whether that occurred because of a calm conversation, a big fight or one partner leaving the home. However, for many other couples, there is no clear date, and we are often asked what classifies as a separation. Some people mistakenly believe a couple must be living apart to be separated, but it is possible to be separated under one roof.

Will the Date of Separation matter?

There are, broadly speaking, three main areas of family law: parenting matters, property matters, and divorce. The date of separation is important when discussing property matters and divorce.

For a divorce to be granted, the couple must have been separated for at least 12 months.

For property settlements, there are time limits that apply. If the couple has been married, a party must lodge an application within 12 months of the date of their divorce. Importantly, for de facto couples, an application must be lodged within two years of the date of separation.

In both of these circumstances, the Court must be satisfied about the date of separation in order to meet the requirements set out in the Family Law Act 1975.

What is the Date of Separation?

A separation occurs when a couple is no longer living together on a genuine domestic basis. There is no explicit definition of what constitutes a separation in the Family Law Act. The Courts have considered many cases about separation and have decided against putting hard and fast rules in place, noting that every relationship is different and unique. In one case, In the Marriage of Spanos [1980] FLC 90-871, the Court stated “Marriage is made up of a number of variable components, the presence or absence of some or all of which and their degree and frequency of occurrence pointing the one way or the other in each individual case.” One thing that must happen, however, is that one party must make the intention to separate clear. This can be direct or indirect, through words or actions. There are several factors that the court will consider when establishing when a couple separated. This includes:

The existence of a sexual relationship;
Sharing a bedroom;
Shared finances;
Eating meals together;
Notifying agencies, such as Centrelink, Immigration, or Child Support of a separation;
Doing one another’s laundry, shopping or cooking; and
Presenting themselves as a couple to family and friends, such as going to social events as a couple.

Some couples are separated and still do some of these things, and some couples are still together and do not do some of these things. Every relationship is unique, and you should seek legal advice about your specific circumstances.

Disagreement about the Date of Separation

Sometimes, couples disagree about the date of separation. If you and your spouse disagree about the date of separation, you should speak to a family lawyer to ascertain your rights and the impact of the disputed date of separation. In instances where there is a disagreement about the date of separation, the arguments will need to be considered in light of the Family Law Act as well as what effect such a date might have upon the division of assets or the timing of a divorce.

FAMILY LAW ADVICE

You deserve to know your legal rights and responsibilities. We will guide you through the process every step of way, ensuring that not only are all potential outcomes discussed but also advice where it is relevant for your unique circumstances. You can rely on our expert family lawyers at Mornington Family Lawyers for a wide range of legal services. We offer sound advice and practical solutions tailored to your needs, whether you’re dealing with simple or more complex cases. We have experience in all family law matters and have helped many clients resolve their matters.

To get help resolving your matter, call us on 8391 8411 or complete our contact form for an obligation free discussion.

WHAT YOU SHOULD KNOW

INFORMATION ABOUT SEPARATION AND DIVORCE

Should I speak to a lawyer before I have separated?

Where property is concerned, our lawyers can give you an insight into your options for achieving a final property settlement with your former partner and how such a settlement might be finalised. We can also offer you more practical advice such as how to ensure that you have access to funds after separation, what to do with any joint bank accounts and how to divide personal belongings. Where children are concerned, our lawyers can help you to consider the options for which parent your children will live with and how much time they will spend with the other parent. We can assist you to negotiate parenting arrangements with your former partner and advise you on the best possible way to finalise the agreement.

Can I be separated under the same roof?

A separation is not formally registered until a divorce is granted by the Federal Circuit Court of Australia. You do not necessarily need to get divorced after separation unless you have re-partnered and wish to remarry. It is important to keep in mind however, that staying married to your former partner can affect your legal rights and obligations in relation to financial matters, Wills and estates. Our lawyers can advise you on whether you should seek a divorce from your former partner, assist you throughout the application process and represent you at your divorce hearing if required.

When can I sort out property and parenting issues?

It is not uncommon for separated parties to temporarily remain living together while they make decisions about their financial relationship and parenting arrangements. This is known as being ‘separated under one roof’ and can last for days, weeks, months or even years. If you are applying for a divorce and have lived with your former spouse post-separation, you may have to support your divorce application with an affidavit. Our lawyers can assist you to prepare and file this affidavit and advise you during the application process if you and your former partner have been separated under one roof.

Do I need to register my separation?

Typically when partners separate, one party will leave the former matrimonial home voluntarily. It is not uncommon, however, for both parties to temporarily remain living together while they make decisions about their financial relationship and parenting arrangements. This is known as being ‘separated but living under one roof’. It is important to understand that both parties are legally entitled to remain in the former matrimonial home post-separation even though this may not be viable. If your former partner is refusing to move out of the home, then unless there are safety concerns, you cannot simply force them out. It may become necessary in these circumstances to obtain a court order for exclusive occupancy that would exclude your former partner from the property. Our lawyers can advise you on how to seek an order for exclusive occupancy or alternative options for excluding your former partner from the home where family violence has occurred.

Do I need to leave the family home when I separate?

Our lawyers can help you negotiate property and parenting issues with your former partner at any stage of your separation. You do not have to wait for your divorce to be finalised before you seek to resolve your property and parenting issues with your former spouse, either through negotiation and mediation or through the Court. If there is a dispute about parenting, then before you or your former partner can commence court proceedings, there is a requirement that you make a genuine effort to resolve the dispute through Family Dispute Resolution first. It is important to remember, however, that certain time limits do apply for instituting family law proceedings for property and parenting matters in the Family Court and Federal Circuit Court (save for exceptional circumstances where the time limits may be extended).Once your divorce is finalised, there is a 12-month time limit in which you can commence proceedings for a property settlement or parenting arrangements in the Family Court or Federal Circuit Court. Separated de facto couples have two years from the date of their separation to commence such proceedings. In either case, our lawyers can assist you to sort out your property and parenting issues outside of court or to commence court proceedings if necessary.