Separation occurs when a marriage or relationship breaks down. The date of separation will be when either or both parties to the relationship:
- form an intention to separate; and
- act on that intention, usually by communicating to the other party that the relationship is over.
Parties can be separated and still live under the same roof. They may still have joint finances and still be very amicable towards each other.
To determine whether the parties are in fact separated, the Court may require evidence about matters such as:
- where each party lives;
- sleeping arrangements if living under the same roof;
- whether they maintain a sexual relationship;
- assistance given to each other, both financially or in terms of household duties;
- attendance at shared activities or family outings;
- public perception: Whether third parties such as family or friends or know about the separation.
Quite often, the exact date of separation does not affect the overall outcome in family law proceedings. However, it will be very important in some circumstances:
- Former de facto couples have two years from the date of separation to commence Court proceedings for a property adjustment or maintenance without first seeking leave to do so.
- Where the parties have different views about when separation occurred, an issue may arise as to when the limitation date expires. It is therefore important to take note of the date that both parties say that separation occurred.
- Married couples may apply for divorce after they have been separated for 12 months.*
- The Court will not grant a Divorce Order if the Application for Divorce was filed before the 12 month separation period expired. If there is a dispute as to the date of separation, further evidence may be required to satisfy the Court that the parties were in fact separated for 12 months before the Applicant was filed.
There is no legal requirement to formally register or document your date of separation. That said, as with any major family law events, it can be very useful to keep a diary note of the circumstances of separation. For example, a separating party may write a summary of the date and time that they had a conversation, or put a note in their calendar of the date that either party moved out of the house. This will assist if the date of separation ever needs to be proved at a later time.
* A limitation period for commencing financial proceedings also applies to former married couples being 12 months from the date the divorce order becomes final.