In law, separation, is defined as the bringing to an end of a marriage or de facto relationship.
In simple terms, separation is a decision made by one party to a relationship (not necessarily, mutual) to end the relationship and then communicating that to the other party.
For a divorce application, a party must prove that they have been separated for 12 months.
So, the date of separation is important and is often is easy to determine (as it is usually the date one partner leaves the shared residence). Sometimes however, this is complicated where for example the parties continue living under the same roof.
If there is no clear evidence of separation or there is dispute between the parties about the date, the Court will need to determine the date by looking into the day to day lives of the parties, including the following non-exhaustive list:
- Are the parties performing domestic duties (such as washing and cleaning) together or separately
- Are the parties sleeping in separate rooms
- Are the parties still intimate with each other
- To what extent the parties have separated their financial affairs
- Have the parties informed third parties such as family and friends or even to agencies such Child Support, Centrelink, ATO etc
In property disputes, the date of separation is important, especially to determine how assets can be divided. For instance, assets purchased by one party after separation can be treated differently to those that were purchased before separation.
For separation by de facto partners, the Court will consider whether:
- The relationship was at least 2 years in length
- An application has been brought within 2 years of the separation
Finally, you don’t need to register a separation.