Understanding your date of separation and its significance in your family law matter is important for anyone going through a relationship breakdown. This blog post will delve into the ‘date of separation,’ why it matters, and how it can impact your divorce and property settlement.
How is ‘separation’ defined?
There is no precise definition of ‘separation’ under family law in Australia, and deciding the exact day you are separated isn’t always black and white.
Sometimes separation is a mutual choice, and you both agree on the date you separated. But separation doesn’t have to be a mutual decision – it could be that one of you initiates the split.
Knowing when you should call yourself separated can be tricky in some circumstances, such as if you’ve been talking about it for some time or if you both continue to live in the same residence. It’s not necessarily the date one of you moves out – separation doesn’t require physical separation.
Instead, separation is generally seen as when both of you know of the intention to separate and you stop living as a couple.
How to establish your date of separation
Determining your date of separation can be a complex task, particularly when there is no clear-cut moment, like one of you moving out. Various factors determine whether you have stopped living together ‘as a couple.’
These factors include:
- clear communication between the parties that the relationship has ended
- an absence of intimacy
- moving into separate bedrooms
- stopping public appearances as a couple
- holidaying independently
- separating finances
- notifying government agencies, like Services Australia
- telling children, extended family and friends you have separated.
In most family law matters, couples can agree to a date, record it and move onto the next steps.
Challenges and disputes about the date of separation
It is not uncommon for separated couples to continue living under the same roof for some time due to financial or other practical reasons. This can lead to disagreements about the actual date of separation.
Suppose you and your former partner can’t agree on the date yourselves or with the help of a mediator or family lawyers. In this case, the Court will examine the circumstances and factors surrounding your relationship and make a determination. Escalating your matter to Court is a very costly way to reach an agreement on the date you separated.
Documenting your separation
You can take steps to solidify the separation date and avoid disputes. Start by informing your family and friends about the separation, especially if you are still living with your ex-partner. Notify relevant organisations such as Centrelink and Medicare about the change in your relationship status. If you have children, notify their school or childcare. Consider dividing joint accounts or closing them to achieve a definitive financial separation.
Impact on divorce proceedings
If you are married, you must be separated for at least 12 months and one day to legally obtain your divorce. This requirement emphasises how important it is to establish a date of separation. Disagreeing may delay your divorce process.
Property settlement considerations
Both married and de facto couples can start the legal process of agreeing on property and family matters from the date you separate.
Married couples have to finalise their property agreement 12 months after the date their divorce is final, or apply to the court for a property order if you can’t agree.
For de facto couples, you need to commence property settlement within two years from the date of separation. It’s important to act well before this time is up to protect your rights and ensure a fair property settlement.
12 months or two years may seem like a long time to organise matters. But negotiations and settlement proceedings can take time, especially if things are fraught between you. Don’t leave things until the last moment.
Seek professional advice
Going through a relationship breakdown is undoubtedly challenging. During this emotionally charged time, we highly recommend that you seek the guidance of a family lawyer or legally-qualified mediator. They can provide the necessary knowledge, support, and advice to make informed decisions about your separation, divorce, and property settlement.
By establishing a clear date of separation, you can fulfil the requirements for divorce and property settlement. Seek education and professional advice early to better understand your rights and options. Though separation can be difficult, informed decisions and proper guidance can help you navigate this challenging time more easily.
The Separation Guide aims to make separation and divorce simpler, more manageable and less stressful. To learn more about how one of our Network Members could support your separation, take our free three-minute Q&A.
The information in our resources is general only. Consider getting in touch with a professional adviser if you need legal, financial or well-being support.