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.

Does it 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 our 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:

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.

What if we disagree?

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.

What to do next?

If you would like to discuss separation or any other family law matter, contact us on 8391 8411 to book a free 30-minute consultation with us to discuss what steps you should take next.