Date of Separation
Get advice from an expert family lawyer
Upon 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 – which is likely to have occurred due to a conversation that took place, an argument, fight or one partner physcially leaving the home.
However, for many other couples, the date of separation is disputed and we are often asked what classifies as a separation.
There is also the misconception, that a couple must be living apart to be separated, but it is possible to be separated under one roof. Especially where there is no external refuge for one of the parties, and the couple are forced to continue cohabitation.
Does the Date of Separation Matter?
Family Law is loosely divided into three different areas: parenting matters, property matters and divorce. The date of separation as outlined above 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?
Separation occurs when a couple no longer lives together in a true domestic relationship. The Court does not have a clear definition of what constitutes separation and have decided not to impose strict rules because 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 be present is that one party must make the intention to separate clear. This can be direct or indirect, through words or actions.
Several factors will influence the Court when establishing when a couple separated., these include:
- 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.
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 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.
WHAT YOU SHOULD KNOW
INFORMATION ABOUT SEPARATION AND DIVORCE
Should I speak to a lawyer before I have separated?
Regarding property matters, our legal team can provide insights into your choices for reaching a conclusive property settlement with your former partner and how this settlement can be effectively concluded. We can also offer practical guidance, such as ensuring post-separation access to funds, handling joint bank accounts, and dividing personal possessions. In matters concerning children, our legal professionals can assist you in exploring living arrangements for your children and determining visitation schedules with the other parent. We can support you in negotiating parenting arrangements and offer advice on the optimal approach to finalize the agreement.
Can I be separated under the same roof?
A formal separation becomes legally recognized once the Federal Circuit Court of Australia grants a divorce. You may not need to pursue divorce immediately after separation, unless you plan to remarry after forming a new partnership. However, it’s crucial to be aware that remaining married to your former partner can impact your legal responsibilities and rights concerning finances, Wills, and estates. Our legal team can provide guidance on whether seeking a divorce is advisable, help you navigate the application process, and represent you during the divorce hearing, if necessary.
When can I sort out property and parenting issues?
It is a frequent occurrence for separated individuals to continue residing together temporarily as they make determinations regarding their financial partnership and child custody arrangements. This situation is commonly referred to as ‘separated while living in the same residence’ and can extend for varying durations, ranging from days to months, or even years. Should you seek a divorce and have cohabited with your ex-spouse post-separation, you may be required to substantiate your divorce application through an affidavit. Our legal team can provide guidance in preparing and submitting this affidavit and offer counsel throughout the application process if you and your former partner have experienced this ‘separated under one roof’ scenario.
Do I need to register my separation?
Typically, in cases of partner separation, one party often chooses to leave the former marital residence voluntarily. Nevertheless, it’s not unusual for both parties to continue residing together temporarily while they make decisions about their financial and parenting arrangements. This situation is referred to as ‘separated but living under one roof.’ It’s crucial to recognize that both parties have legal entitlements to stay in the former marital home post-separation, even if it may not be practical. If your former partner is unwilling to vacate the residence, except for safety concerns, you cannot forcibly evict them. In such circumstances, obtaining a court order for exclusive occupancy, which would exclude your former partner from the property, may become necessary. Our legal team can offer guidance on pursuing an order for exclusive occupancy or exploring alternative measures, particularly in cases involving family violence.
Do I need to leave the family home when I separate?
Our legal team is here to assist you in negotiating property and parenting matters with your former partner, regardless of where you are in your separation process. You don’t need to wait for your divorce to be completed before addressing these issues, whether through negotiation, mediation, or the Court system. When it comes to parenting disputes, there’s a requirement to attempt Family Dispute Resolution before pursuing court action. It’s essential to keep in mind that specific time limits exist for initiating family law proceedings regarding property and parenting matters in the Family Court and Federal Circuit Court (unless there are extraordinary circumstances that warrant an extension). Once your divorce is finalized, there’s a 12-month window for commencing proceedings in the Family Court or Federal Circuit Court for property settlement or parenting arrangements. De facto couples who have separated have a two-year timeframe to initiate such proceedings. In either situation, our legal team can guide you in resolving property and parenting matters out of court or initiating court proceedings when needed.