Separation vs Divorce – what is the difference?
Separation is when at least one party in a relationship forms an intention to end the relationship and acts on that intention to end the relationship. There is no formal process required to separate. Divorce is the formal legal process that ends a marriage. In Australia, this occurs by filing an Application for Divorce with the Federal Circuit and Family Court of Australia.
Factors to determine separation
Severance of relationship
Generally, one party will express to the other, either through words or conduct that the relationship has ended.
Separation generally has not occurred when parties have decided to ‘take a break’ or ‘spend a week apart’. There needs to be a permanent separation between the parties.
It is important to note that only one person needs to express the intention to leave the relationship and act on that intention.
Living separately and apart
Parties can be living separately and apart, even if they are separated under the one roof. This can be seen in section 49(2) of the Family Law Act 1975 (Cth).
Some factors which can determine whether parties are living separately and apart can be:
- A change in living arrangements, where parties:
- Move into separate bedrooms;
- Reduced or ceased shared domestic activities, such as:
- cooking separate meals;
- shopping for individual groceries, etc.
- Financial separation, including:
- Creating separate bank accounts;
- Dividing joint assets;
- Dividing household expenses;
- Ceasing to make joint decisions about financial matters.
- Social and public presentation
- Informing family and friends of the separation;
- No longer attending events together as a couple;
- Informing government authorities e.g. Centrelink, Child Support Agency, ATO (when filing tax returns) of the separation.
- Ceasing a sexual relationship
- There have been judgements which say that occasional sexual intercourse is not determinative in a separation not having occurred.
These factors are not exhaustive and they are certainly not determinative. The Court will holistically assess the entirety of the circumstances to determine separation, particularly where the date of separation is disputed.
Why is the separation date important?
The date of separation is significant in the following circumstances:
- You are eligible to file an Application for Divorce, 12 months after you separate; and
- There are threshold requirements for people in de facto relationships (if you wish to bring a claim for an alteration of property interests, it must be done within 2 years of the date of separation, except in some limited circumstances).
At Streeterlaw, our team of family law solicitors can assist you with all aspects of your family law matter, whether it be planning the steps you should take to separate, assisting you with your financial settlement, or assisting you with your Application for Divorce. Call our office today on (02) 8197 0105 or email contact@streeterlaw.com.au to get in touch with one of our solicitors today.
