What does Separation mean?
Under the Family Law Act (the Act), separation may be held to have occurred notwithstanding that:
- the cohabitation was brought to an end by the action or conduct of one only of the parties; or
- they have continued to reside in the same residence or that either party has rendered some household services to the other.
Whilst the Act does not go much further than this, Courts over the years have made various comments regarding the meaning of separation, such us:
- It involves the breakdown of the marital relationship.
- Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed.
- Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party. There are many ways of communicating an intention or change of attitude.
- What comprises the marital relationship for each couple will vary.
- Marriage involves many elements, some or all of which may be present in a particular marriage — elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.
Why is the date of separation important?
The date of separation is often disputed by parties to property settlement matters and where divorce applications are contested.
In these instances, it would be beneficial to have something to refer back to which shows the date of separation. For example, it could be text message you sent your spouse, an email, or some kind of file note.
If you separated from your de facto partner and are now seeking a property settlement, you will likely have to establish to the Court that you were together for two or more years. In this case, the date of separation could be crucial.
If you are applying for a divorce, you will need to establish that at least 12 months have elapsed since you separated from your spouse. If you can’t establish this, the Court won’t grant the application.
If you are not sure about your personal circumstances, feel free to give us a call.