Separation

This section identifies the stages of separation, how separation can affect people, what you may need to consider and some immediate decisions you may need to make.

There are several ways that parties to a marriage or de facto relationship can separate such as through an agreement, leaving the relationship, trial separation, separation under one roof or one party being ordered by the court to leave the family home.

Separation is a major process for everyone. Most people admit to feeling the worst they have ever felt in their life during this time. If you separate, you may experience the following stages of grief:

  • Shock and denial that it is really happening;
  • Anger and blaming your former partner or another person;
  • Sadness and depression; and/or
  • Moving forward – acceptance and adjustment to your new life.

Talking to family and friends may help you sort out your feelings. Seeking professional help may also assist you and your children to cope better with the changes.

What is separation?

Family law defines separation as the ending of a marriage or de facto relationship. Australian family law does not prescribe a means in which parties can register their separation. Separation is the first step to divorce and it needs to be proved in circumstances where it is disputed by the other party. To assist the parties in overcoming this hurdle, it is wise to have the date of separation in writing and acknowledged by both parties so that you are not restricted by any time limitations that may arise.

In the case of a de facto relationship, whether the property settlement is available generally depends on the timing of separation, that is, whether it occurred before or after the two-year mark. If the de facto relationship was less than two-years in duration, the court may have no jurisdiction under the Family Law Act to provide a property settlement.

There is also a two-year period in which the parties can bring a property settlement case forward from the date of separation. In these circumstances, and if the parties intend on living under one roof, the court will need to consider a variety of factors to determine when and if a separation has occurred.

Some of the factors that the court may take into consideration include:

  1. Whether the parties have slept in the same room or separate rooms after the date of separation;
  2. Whether the parties perform domestic duties for the other after the date of separation;
  3. Whether the parties have divided their financial affairs after the date of separation, for example, different bank accounts, phone and internet bills, car expenses etc.
  4. Whether the parties have informed government agencies such as Centrelink or the Australian Taxation Office of their separation;
  5. Whether the parties have maintained an intimate relationship after the date of separation; and
  6. Whether the parties have informed family and friends of their separation.

As previously stated, there may be alternative remedies available, or a basis other than the two-year requirement to prove the de facto relationship existed.

Note: South Australia does not deal with de facto relationships in the Family Court. They are dealt with in the State Courts and based on South Australian law.

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