Being Separated Before A Divorce

July 13, 2022
Couple Screaming at eachother

In Australia, the concept of obtaining a divorce is premised around a party demonstrating the dissolution of the marriage and that it is “irretrievably” broken down. But, before one can actually obtain a divorce the state requires that a couple spends a period of time being separated before a divorce can be finalised. Prior to filing any divorce papers, the parties must spend a minimum of 12 months being separated before divorce proceedings can begin.  

Separation

Separation, in a nutshell, means the breakdown of the marital or de facto relationship to the extent that one, or both, partners intend to permanently sever the relationship. Section 49 of the Family Law Act 1975 (Cth) establishes and highlights two key principles for separation.

  1. A result of cohabitation being brought to an end by the action or conduct of one of the parties; or
  • The parties to a marriage may be held to have been separated and to have lived separately and apart.

One Road Separating into two

There is an exception to this called “Separated Under One Roof’ wherein a couple has continued to reside in the same residence but are living separately under one roof. They do not cook for each other or do any household duties for one another or go out socially together. Ideally, a separate person who has witnessed the relationship end, should provide an Affidavit as to separation of the parties, under one roof.

Determining The Concept of Separation

More often than not, determining the concept of separation can be difficult both for the Court and the respective parties to the proceedings. The reality is that the parties “separate” over a period of time and the “separation” is more of a process than a specific date. However, proving the date for separation is important because:

  • A party may wish to make an application for child support.
  • A party may wish to make an application for divorce.
  • A party may wish to initiate property proceedings.
  • A party may be in financial hardship and seeks to make an application for Centrelink benefits.
  • Determination of whether contributions fall within the scope of ‘during the relationship/marriage’ or ‘post separation’.
  • Meeting the statutory requirements of a de-facto relationship.
  • Enforcing previous prenup or postnup agreements. (In Australia, these are called “Binding Financial Agreements”)

A financial agreement can be signed at anytime before, during or after a marriage. The contract is entered into by two parties and can include the division of property, finances, liabilities, superannuation, spousal maintenance and more. Like most spousal contracts, it’s crucial you and your partner seek independent legal advice. Failure to do so will render the contract void. These agreements are often used to help expedite the divorce process and save time and money in court proceedeings. Click Here for More information on Binding Financial Agreements.

Commencing Property Proceedings In A De-Facto Relationship

In commencing property proceedings in a de facto relationship, both parties must be able to demonstrate that the relationship has ceased.

With respect to both de facto relationships and marriage, clarity as to the separation date is essential, particularly with respect to the following applications:

  • Applications for de facto financial matters must be filed within 2 years of the date of separation.
  • Applications for Divorce may not be filed until 12 months after the date of separation.
  • Applications for financial orders for de facto parties may not be filed where the parties have not actually ended their relationship.

The Date Of Separation

Moreover, in other cases which CM Lawyers deal with frequently, the concept of the date of separation can be an important consideration for the court in determining the appropriate course of action. These cases may include:

  1. Applications for property settlement involving assets acquired after separation.
  • Applications for property settlement in terms of the assessment of contributions post-separation; and
  • Care arrangements for the children following separation.

Wherever you are in the process, considering divorce and separation can be a very difficult time. During these times, it is good to have people you can trust to work with you and for you to ensure you get your best outcomes.

Should you have any questions surrounding your material date of separation, or divorce, CM Lawyers are here to help.

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