Separation for married and de facto couples
A separation, or ending a marriage or de facto relationship, might be done in an amicable way or it may be a difficult time for everyone involved. It affects everyone differently.
Emotions may run high and the grief of losing an important part of your life can be unbearable and confusing. The grief may mean you’re in shock, in denial, angry, depressed or sad. Or perhaps you’re at the stage of acceptance and simply want to move forward with your life.
Whatever you’re feeling, it’s important to lean on your friends and family during this time and talk about those feelings. You may even want to seek professional help to assist you and your children in moving forward and coping with the change.
If you’re ready to get professional family law advice and help, contact the family lawyers at Ivy Law Group on (02) 9262 4003 or submit an online enquiry.
The definition of separation
Separation, from your spouse or de facto partner, generally means that either you or your spouse or de facto partner are living separately from the other. Living separately can occur while you remain under the same roof, although it might be more difficult to prove.
Separation can be a joint decision or initiated solely by one party to a relationships, however it does need to be communicated to the other person.
The importance of the date of separation
When going through a separation, it is important to record the date of the separation.
You can record the date of separation by:
- communicating it in writing in an email or text message and keeping a copy of this communication;
- making a diary entry on the date that separation occurred, and detailing the conversation you had confirming the separation date; and
- drafting a document that sets out the date that separation occurred and then jointly signing the document as confirmation.
The reason the date is important is that:
- separation must come before you can make an application for either divorce or property settlement matters, including maintenance matters; and
- there are time limitations and implications, that run from the day of separation in applications for divorce (if you’re married) and in property settlements, including spousal maintenance applications.
What if the date of separation is in dispute?
Sometimes, you and your former spouse don’t agree on the date of separation. This can delay the processing of your divorce and may affect your property settlement. It may also impact the value of the net pool, which is the total of the assets, liabilities and superannuation entitlements in joint or sole names at the date of separation.
If you were in a de facto relationship and you can’t agree on the date of separation, it may push you outside of the following timeframes provided in the Family Law Act 1975:
- the two-year limit for a de facto relationship to even exist (that is, that your relationship was at least two years long)
- the two-year limit required to commence proceedings in the Court (that is, you must commence proceedings within two years from the date of separation).
Can my former or de facto partner and I be “separated under one roof”?
Being “separated under one roof” means that your marriage or de facto relationship has broken down but you and your former spouse or de facto partner continue to live together in the same home.
This can occur for many reasons, including when couples are awaiting a financial property settlement to allow them to relocate.
When trying to convince the Court that you and your former spouse or de facto partner have actually “separated under one roof”, the Court will look for:
- a change in sleeping arrangements;
- a reduction in joint activities with your former spouse or de facto partner, i.e. no longer socialising together or attending functions together that you would otherwise have attended in the past;
- a decline in shared household activities, including cooking or doing laundry for each other, and eating meals together;
- the division of financial contributions and resources, by closing joint bank accounts and paying for bills or utilities separately and from your individual incomes;
- whether friends and family have been notified of the breakdown of your relationship or marriage and if it is publicly known that separation has occurred;
- notifications to government departments or institutions that you are no longer in a relationship with your former spouse or de facto partner, i.e. informing Centrelink that you are single or requesting Medicare cards with your sole names on them).
If you have separated under one roof, it is very important for you to communicate to the other party that the relationship has ended, and keep a record of this communication, to avoid any disputes surrounding the date of separation.
For more on this topic, see our article: Separation under one roof, how does it work?
What steps need to be taken when separating?
If you decide to separate from your former spouse or de facto partner, there are a number of questions you should ask yourself. These questions are important because they are practical and deal with the emotional wellbeing of the people around you who may also be impacted by the decision to separate.
Also, given the delicate nature of separating, you and your former spouse or de facto partner may not be able to agree on all arrangements.
The questions to ask yourself are:
- how will we tell the children about the separation?
- how can we minimise the impact it has on the children and their living arrangements, school and other routines?
- how will we ensure the children maintain a meaningful relationship with each parent, in terms of how they spend their time, live and communicate?
- what support systems do I and my children need to assist with the emotional burden of a separation or divorce?
- should I get counselling for myself or my children?
- what joint decisions can we make (if there is common ground) in relation to property and money matters, including:
- how will the funds in any joint bank accounts, building society or credit union accounts be divided?
- who will continue to reside in the former family home, or will it be sold?
- what outstanding bills, rental payments or mortgage repayments, or any other debts remain, and how will they be paid?
- how will the former family home, cars, furniture and other property be distributed?
- what arrangements can we make between us until a proper settlement of all financial matters can be made?
- how do we reduce conflict that may arise when deciding these issues?
- how will I, and my former spouse or de facto partner, support ourselves and our children?
- do I need child support or spousal maintenance payments from my former spouse or de facto partner to assist me financially?
Further considerations may include:
- how and when do I apply for a divorce?
- do I need to consider going to Court if things are hostile or we cannot come to an agreement?
- how do I commence Court proceedings?
If you wish to make an application to commence proceedings for property settlement matters, spousal maintenance matters, parenting matters, child support matters, or to apply for a divorce, contact the family lawyers at Ivy Law Group on 02 9262 4003 to arrange a free, no-obligation initial consultation.
However, if you are in serious danger or are experiencing family violence, please go through the Red Alert Checklist: What to do in serious circumstances and contact us immediately on (02) 9262 4003 for family law advice tailored to your circumstances.
Important time limitations for separation
Application for Divorce
These can be made 12 months from the date of separation (married couples only).
While there is no limitation on when an application for property settlement can be made, and noting there are specific pre-action procedures and steps that need to be taken prior to filing such as application, an application for property settlement must be filed:
· within two years from the date of separation in a de facto relationship, or
· within 12 months from the date upon which your divorce order becomes final for married couples.
As soon as practicable, but no longer than 12 months from the date of filing (married couples only).
How can Ivy Law Group help you?
Our family lawyers have extensive experience dealing with separation and other family law matters.
Contact the family lawyers at Ivy Law Group on (02) 9262 4003 to arrange a free, no-obligation initial consultation. You can also submit an online enquiry and one of our family lawyers will get in touch with you.
How does a marriage end?
A marriage, whether heterosexual or same-sex, can end by:
- the death of a spouse.
FAQs about separation
Before you commence proceedings in the Court you must be separated from your former spouse or de facto partner and have complied with the pre-action procedures set out in Rule 4.01 and Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules) for both property and parenting matters. There are certain situations where exemptions for these pre-action procedures can be granted by the Court.
Once you and/or your spouse or de facto partner have separated and this has been communicated between you, the next step is to consider whether it is appropriate or suitable to discuss issues of a financial or parenting nature. In circumstances where it is safe to have discussions about these issues it would assist you both to discuss and attempt to reach an agreement about various things including, but not limited to:
- the financial arrangements that will be made in relation to rental or mortgage repayments, payment of bills and utilities, and any other debts owing;
- the arrangements that will be put in place for the children of the relationship? (for example, where will the children live during the week and what care arrangements will be made for the children to have a meaningful relationship with both parents?)
For further considerations, please read What steps need to be taken when separating?