Separation dates

How do I know if I am separated?

In most separating couples’ minds, separation is no small event. It may come as a surprise, therefore, that not all couples agree about when exactly they separated.

This can be a bit of a challenge when applying for divorce, or jointly preparing and signing documents like Binding Financial Agreements and Applications for Consent Orders that require agreement between the couple about the date of final separation.

It can also mean that your spouse in marriage may contest the date of separation on your Application for Divorce if you apply for one (to dispute the 12 months’ separation period required for a Divorce) and this can result in a court hearing taking place so that a determination can be made by the Federal Circuit and Family Court of Australia about the separation date.

Why is it important to have an agreed separation date?

In Australia, there are several time limitations under law that are fixed on the date of separation. Some examples include that:

1. De Facto couples should resolve their property settlement disputes within two years of separation. After two years, they may need permission from the Court before being able to start property division proceedings.
2. Married couples need to be separated for a minimum of 12 months before they can apply to the Court for a Divorce Order.
3. In a Divorce Order, the Court records and identifies the date of marriage and date of separation of a married couple. Only one date is entered on the Order, so an agreement needs to be reached or a determination made by the Court as to what is that date.

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So what is the legal position in Australia about separation dates?

Separation is explained in the Family Law Act 19751 to be when cohabitation ends, or when parties have lived separately and apart even if they continued to reside in the same home.

The Act only requires one member of the couple to have fully formed the decision and the view that they are separated from their spouse – so long as that view is then communicated or conveyed by action or behaviour to the other party. The action can be to verbally relay that decision or intention in a conversation, by SMS or email, or it can be conveyed by a clear action of moving out and living separately and apart. Although actual physical separation is not a required factor of separation.

Some couples separate and continue to live under the same roof; this does not invalidate a party’s position of when the relationship broke down. However, married couples living separated under the same roof in this way should be aware that the Federal Circuit and Family Court of Australia will require corroborating proof that the separation is genuine and continuing for a minimum of 12 months before it can accept an Application for Divorce or issue a Divorce Order.