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.
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.
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  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.
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.
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 Point Cook 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.
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.
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.