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Am I separated? Legal Separation in Australia

Identifying exactly when separation occurred is sometimes obvious and other times less so. For some people, the breakdown of a relationship aligns with one person moving out. In these instances, it is clear when separation occurred. In other relationships, the gradual breakdown of a relationship occurs over time, and often the couple continue to live together after their relationship has ended.

How is “separation” defined?

For the purposes of family law, you are separated if your defacto relationship or marriage has irretrievably broken down. This means that there is no prospect of reconciliation or continuing to live together as partners. It does not mean that you need to be living in separate homes.

How can I show that my relationship has irretrievably broken down?

The date of separation can be deduced from your conduct. Separation does not require “physical separation”, but rather the effective breakdown of a relationship. There is no exhaustive list of factors that need to be considered when determining if you are separated. Commonly, some of the following factual circumstances will be present:

  • One person has communicated their intention to separate from the other, with some level of finality
  • One or both of you have told your friends and family of the separation.
  • You sleep in separate bedrooms (if possible).
  • You have opened separate bank accounts.
  • You do not spend time together in a social sense.
  • If you continue to live together:
    • you may occupy separate areas of the home,
    • you may avoid sharing mealtimes and recreational time, or
    • have changed the routine for cooking, laundry and housework to reflect your separate lives.
  • Your communication (other than with respect to children or joint assets) has ceased.
  • You or the other spouse has a new romantic attachment.

Any number of facts could be considered. Essentially, the factors should derive from a comparison of the relationship before and after the separation.

Why is the date of separation important?

The date of separation needs to be known for the following reasons:

  • If you are married, you will only be eligible for a divorce if you have been separated for 12 months or more.
  • If you need to divide your marital property, the date of separation is an important date when determining what you each would be entitled to. For example, short relationships are treated a little differently to long relationships that span over decades. In a short relationship, it is much easier to identify the financial contributions of each party, and the importance of these contributions is greater. Over time, an imbalance in contributions is gradually softened and less connected to each of your entitlements on a final basis.
  • If negotiations to divide your marital property have broken down, and you need to apply to the Court for an order dividing your property, the date of separation is crucial as you will not be able to make an application to the Court:
    • more than 2 years after the date of separation (if you were in a defacto relationship); or
    • 12 months after the date of divorce;
    • without the special permission of the Court.

Case Study – Mahon & Mahon (2015)

In this case, there was disagreement about when the separation actually occurred. The husband asserted that they separated in 2005, and the Wife claimed they separated in 2012. It was not an easy line to draw. Despite the continuation of a sexual relationship, and the continuation of sporadic and limited cohabitation, the Court decided that the separation date was 2005 because:

  • In 2014, the wife stated to police that she had separated from her husband in 2007.
  • The wife has started receiving Child Support Payments since 2010.
  • In 2004, the wife applied for the Single Parent Benefit from Centrelink.
  • In 2005, the Husband bought property separately from the Wife. In 2008, the Wife bought property separately from the Husband.

In this case, as there were 4 young children at the time of separation, whom the Wife brought up largely unassisted, the Judge determined that the Wife was entitled to a share in the Husband’s post-separation accumulation of assets. If the couple did not have children, the result could have been vastly different, and the early date of separation could have significantly reduced the Wife’s entitlements.

The date of separation will also be relevant for purposes outside the realm of family law, such as Centrelink applications and your estate planning. Our lawyers can assist you with identifying your date of separation, how to best go about it, and what to do next.

Important Disclaimer: The content of this article is general in nature and for reference purposes only.  It does not constitute legal advice and should not be relied upon as such.  Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.



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