Separation

At the risk of stating the obvious, separation occurs upon the realisation by a spouse that the relationship or marriage has irretrievably broken down. Separation is usually taken to be the time that one spouse physically moves out of the home of the relationship. It is, however, possible to separate but remain living under the same roof.

Whether or not parties who remain living under the same roof are indeed separated is a question of fact to be determined by identifying whether or not the usual indicia of a relationship continue such as, for example, mutual financial, social, emotional and domestic support. In other words, the law looks to whether spouses continues to cook, wash and clean for each other; whether some or all of the financial affairs of the spouses are still joint; whether the spouses still hold themselves out to friends and family to be in a relationship such as, for example, by attending social and family functions together; and whether the parties continue to share the same bed and maintain an intimate relationship. To be separate though continue living under the same roof you must, in essence, be living completely separate lives with the only commonality being the fact that you happen to live under the same roof.

The actual date of separation is important in family law for several reasons including:-

• you can generally only apply for a Divorce in Australia once you have been separated for a period of 12 months;
• generally speaking, parties to a de-facto relationship have 2 years from the date of separation to reach agreement about the division of property. After a period of 2 years has lapsed then, without special permission from the court, neither party can initiate proceedings to resolve property matters on a contested basis.
• the date of separation is important so that the property that existed at that time can be ascertained and any further property accumulated by either party after separation can, similarly, be identified.

The fact of separation does not need to be formally registered or otherwise evidenced in any way. However, to avoid any disputes as to the actual date of separation, you could simply write a letter to your former partner stating that, as at the date of the letter, you are living separately and apart and feel that there are no prospects of reconciliation.

Separation usually triggers the need to address and resolve on a formal and final basis:-

• The division of property and liabilities;
• The care and living arrangements for any children of the relationship;
• Getting a Divorce;
• Applying for and obtaining child support payments for any children of the relationship;
• Amending your Will.

At KJB Law we can provide comprehensive advice to you in relation to all matters that need to be addressed in light of a pending or actual separation.

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