Am I separated? Explaining separation in family law

19 January
Divorce, Property Settlement, Separation

In Australian family law, separation occurs when a marriage or de facto relationship has “broken down irretrievably” with no chance of reconciliation. You may be wondering, what does separation actually mean?

Generally speaking, separation arises when parties to the relationship stop living together. However, this is not always the case. In today’s blog, we will explore exactly what separation is, and why the date of separation is important for divorce criteria and property settlement.

Am I separated – for family law purposes?

Separation can be mutually agreed by both parties to a relationship (whether married or in a de facto relationship), or it can be initiated by one person unilaterally. Sometimes it can be easy to identify when separation occurs. For example, if you decide to move out of the home you share with your former partner on 1 March and do not reconcile after this date, the date of separation is 1 March.

Other times, it can be harder to identify when separation occurs. As mentioned above, the parties do not need to be physically separated to be separated for family law purposes (although this can be useful to avoid any confusion or disputes). If the parties do not stop living together at separation, the date of separation is deemed to be the point in time at which one or both parties agreed the relationship was over.

Following the date of separation, there must be a change in the relationship between the parties. In other words, you cannot just tell the other person you wish to separate without acting on it. Some examples of changes in the relationship include the following:

You no longer sleep in the same bed and no longer share any intimacy;
Your friends and family have been informed of the separation;
You do not socialise as a romantic couple;
Either party has re-partnered;
You no longer cook, clean or do laundry for one another.

Please note, the above list is not exhaustive, and every matter is different. It is important to seek legal advice about your specific case.

I know that I have separated, what do I do now?

Separation does not require any legal processes such as registration or certification. However, it may be useful to record the date of separation for your information. Other things to consider following separation may include:

informing your children, friends and family of the separation;
informing agencies such as Medicare and Centrelink of the change in relationship status;
applying for a Child Support Assessment with Services Australia;
changing your nominated beneficiary for superannuation, insurance policies or pensions;
Revising your Will to align with your wishes;
Seeking legal advice from a family lawyer as to property settlement, parenting or divorce matters.

Why does the date of separation matter for a divorce?

To apply for a divorce in Australia, you must be separated for at least 12 months. If you have been living with your former partner during the 12 months of separation, certain criteria must be met.

For more information, please read our blog, “Divorce if separated but living under the one roof”.

Why does the date of separation matter for a property settlement claim?

If you wish to divide your assets, liabilities and superannuation with the other party, the date of separation is crucial for two reasons.

It can affect your rights and entitlements

The length of your marriage or de facto relationship is an important aspect when assessing what each party should retain at settlement. For example, financial contributions may be looked at on a yearly basis for a shorter relationship, but a more holistic approach may be taken for a longer relationship.

It may trigger a time limit to resolve your property settlement matter

It is important to be aware there is a 1-year time limit from the date of divorce for parties to a marriage to commence legal proceedings in a Court in relation to the division of property. For parties to a de facto relationship, there is a 2-year time limit from the date of separation.

Failing to commence proceedings within the relevant time limit may mean losing your right to make a claim for property division. Therefore, you should be mindful of your time limit when negotiating a property settlement or commencing proceedings. And don’t forget to record the date of separation.

How can a family lawyer help?

If you would like to discuss your situation in more detail, you can book a free no obligation phone consultation with one of our lawyers. We assist separated couples across Australia with all aspects of separation and family law.