Contents
Introduction
Separation arrives uniquely for every couple. It could come slowly. It might appear out of nowhere. But whatever precedes it, the lived experience of separation is likely to be practically difficult and painful.
This Guide is not about the emotional challenge although we know that, for many people, this is the main issue for them at the time. Rather, we want to give you an overview of the legal issues surrounding separation, and a heads-up on the practical tasks to be kept in view for a successful transition to the new life.
But because the emotional toll of separation is so significant, we wanted to urge you, upfront, to look to your mental and to your physical health as a matter of priority. Yes, you have to look after all the things, but you should especially look after yourself. All the practical and legal information in the world will not make your separation a success if you cannot stay well, stable and able to make it one. So, please seek out counselling or medical support if you have developing physical, emotional or behavioural issues. This is not the time for falling apart. It is the time for one foot in front of the other. Separation can feel like the end of the world, but in fact, it’s the end of a bad time and a great big stepping-stone to a better future.
There’s lots to think about and to get organised. It might be difficult to stay clear in your thinking and to make every decision a good one during this stressful time. It is important, however, to research, to consult and to plan and then to take action that minimises future negative fall-out and optimises for the best possible outcomes.
Is there law about separation?
The law we refer to in this Guide comes from the Family Law Act, 1975. This is a Commonwealth law and it applies in every state and territory except Western Australia, which has its own Family Law Act, 1997. The Commonwealth’s Family Law Act specifically addresses marriage and divorce but then also parenting, property and financial arrangements for both separating married and de facto partners. The family court website is the best source of detail about Commonwealth family law.
As well as the Commonwealth law, there are other relevant laws, such as domestic violence and child protections laws, that are different in every state and territory. And in addition to the written law, there is law that accumulates from the decisions in all of the cases that go to court. This is called ‘the common law’. There are some cases about separation but unless you end up in a dispute (about the date of separation or whether you are indeed separated) it is unlikely that you’ll need to know about those.
What is a de facto relationship in family law?
People can name any relationship ‘de facto’ if it suits them. Centrelink and other organisations have their own definitions of what a de facto relationship is. But if a person wants to access property settlement or spouse maintenance processes under Australian family law, they will need to have an ‘eligible de facto relationship’ under the Family Law Act. This would be the case if:
The partners live in a genuine domestic relationship
AND
They have done so for at least 2 years
OR
They have a child
OR
There would be hardship if a de facto relationship wasn’t found to exist
OR
The relationship has been registered under a state or territory law.
Because Western Australia has a different family law, there are complex requirements about how the relationship relates to being in or out of that state. For example, former de factos living in Western Australia can apply under the Commonwealth law if at least one-third of their relationship was spent in a state of territory that is not WA.
What is a ‘genuine domestic relationship’?
There is no hard and fast definition of genuine domestic relationship for identifying de factos under Commonwealth family law but in the event of a dispute about the issue, the court would look at:
- whether there are any children of the relationship
- whether a sexual relationship existed between the parties
- whether and how the partners lived together
- the degree of financial dependence between the parties
- the degree of mutual commitment toward a shared life
- the social reputation of the relationship
- use of property.
Divorce
You can get divorced after you have been separated for a minimum of 12 months. This is just one reason why being certain about your separation date is so important.
For more detailed discussion about divorce, see Tribe’s Guide to How to get a Divorce.
Talk to Tribe also about advice and assistance with preparing, filing and serving your divorce application.
Chapter 1
What is legal separation?
Introduction
To other people, the separation of one long-term couple looks very similar to the next. They stop going out as a couple. They let the people around them know that they are no longer together. We all have an instinctive understanding about what this means so the social treatment of the couple generally changes from this point. But is this what separation really is? Do these outward appearances have any bearing on what the law considers to be separation? The answer is yes, more than a bit, but there’s a lot more to it as well.
In this chapter, we’ll talk about what a valid separation at law is, including in the more difficult context of ‘separation under one roof’ and we’ll also touch upon the legal differences in separation as between de facto and married couples.
How do I separate?
To separate from a long-term relationship, one person or the couple together, must decide that the relationship is permanently over. This sounds like an obvious statement. But there are particular qualities of this decision, and more particularly, of the action associated with the decision, that really matter legally. The most important of these are:
Clear communication of the intention to separate
and
Substantial change in the character of the relationship.
Under Australian law, legal separation is proven by one or both of these. There is no requirement to physically separate. There is no requirement to put it in writing or to register the separation (with Centrelink[1], the court or anywhere else) to make it ‘official’.
The intention to separate should be clearly communicated between the parties.
Communication of the intention to separation can be achieved by simple words said by one person to the other (e.g. ‘Our marriage is finished’). It can be apparent by action that is consistent only with an interpretation that the relationship has been cut (e.g. by one person moving all of their gear out of the house). It might be agreed between the parties. It might occur in an email or a letter addressed by one party to another.
If separation is not effectively communicated between the parties, in the eyes of the law the relationship remains intact. This could have legal implications that are not in your best interests further down the track.
At law, it doesn’t matter how it happens. What matters is effective communication of at least one person’s intention that the relationship is at an end, ideally from a specific date you both agree on. It is a good idea to use clear words in an appropriate context to express the intention to separate, even if you find this hard to do. (And yes, lots of people find this hard to do.)
The words that you choose shouldn’t allow any misunderstanding about whether you are serious about ending the relationship, or about whether your feelings are temporary or unsure, or that you might mean something altogether different. You can involve other people in the communication process but if you are not present you may never know whether the correct message – that the relationship is finished—was given or received. (And the other person might just say that it wasn’t anyway!)
What separation isn’t
Words and actions that do not indicate final separation, at least by themselves, include:
- Walking out.
- “I’m going on a trip and don’t know when I’ll be back.”
- Being unfaithful.
- “I think we should try living apart/need to take a break.”
- An act of domestic violence.
- “This is not working for me.”
- Changing relationship status on Facebook.
- “I don’t love you anymore.”
- Mere physical separation.
- “Our relationship is in trouble.”
- “I hate you.”
Check out details about Tribe’s Separation Advisory Clinic for help and direction about managing your separation.
Change inside the relationship after separation
As we mentioned in the introduction to this Chapter, separation, as it is recognised by society, is a set of cultural behaviours. But it is true also that there is a particular set of behaviours that people with intact relationships generally perform. These include the way they present themselves socially, the way they generally live together. For example, most couples will share a bed, most will have a sexual relationship, they’ll have routines about shared work around the house, shared financial resources and obligations, and provide other forms of support and care to each other.
In the event that there is misunderstanding or dispute about whether or when legal separation has taken place, a court will be interested to compare the ‘before’ and ‘after’ pictures of both the internal and external habits in the relationship. A person attempting to prove a separation will be trying to show that these habits, and indeed, that the entire character of their togetherness, shifted from a certain date.
—————————————————————————————————————-A case study:
IVF + texting trumps separate homes + arguments
One of the de facto partners left the home and made a separate residence. Despite this, and their frequent fighting, the couple continued with their arrangements for one of them to have a child by IVF, communicating often by text about this. The court decided that the couple was not separated. Clarence v Crisp [2016] FamCAFC 157
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The court understands that people live their relationships, and arrange their separations, in very different ways. What matters is not that you do or don’t do anything specific – say, that one person used to cook dinner for the other and then stops — although that fact might certainly be part of the overall picture. Rather, what is relevant is how the overall pattern of living, the character of the relationship in its entirety, has changed. In circumstances of separations under one roof, where lots of the same routines may be continued, being able to demonstrate this shift can be a delicate matter.
In practical terms, the court might be interested to know about changes in the residence, in frequency and forms of communication, in household routines, social presentation, financial arrangements and yes, about the couple’s sexual relationship. What matters is the overall pattern of togetherness and whether there has been a significant change.
How is separation different for married and de facto couples?
Although property rights and entitlements at the end of a relationship for former de factos have now been brought into line with the rights for people in a marriage, the fundamental legal character of the two types of relationship are very different. Put simply, a marriage exists independently as a legal union at law and a de facto relationship doesn’t. De facto relationships have no identity outside the laws that address them for specific purposes. In each of those laws, a de facto relationship is particularly defined.
In a separation dispute in court, a married person will have the pressure of proving the separation by showing that an on-foot marriage relationship doesn’t exist. In a family law dispute about separation between de factos, the pressure of proof is on the other side. That is, the person saying there was no separation must prove that a de facto relationship, as defined under the law, did exist at the relevant time.
The difference is not going to have much practical significance for most people. It might have most relevance where one party is trying to access the property settlement entitlements for de facto couples under the Family Law Act.
Why does the date of separation matter so much?
- You must be separated for at least 12 months before you can apply for a divorce.
- Child support becomes payable from the date of separation.
- Independent Centrelink benefits generally become payable from the date of separation.
- The date of separation is an important marker for assessing entitlements in a property settlement (about the distribution of property between the parties after relationship breakdown).
- Spouse maintenance (where money paid by one spouse, including a de facto spouse, to support the other) is usually payable from the date of separation.
- A court may compare arrangements for children before and after the date of separation in deciding on parenting orders.
- If former de facto partners want a court-ordered property settlement or for spouse maintenance payments, they must apply within two years of the date of separation. (There are exceptions for special circumstances.) This includes ‘consent orders’ for property settlement: see Chapter 3. about this.
- In the usual case, de facto partners’ access to the family law system’s processes for property settlement and income maintenance requires that separation does not occur before two years after the couple started being a de facto couple.
———————————————————————————————————————A case study:
Showing separation by changed circumstances.
A wife discovered that her husband had been unfaithful. After this, they slept and ate in separate rooms. They didn’t speak directly to each other, and had separate social lives. But she also continued to wash and cook and clean for him. He said they weren’t separated. The trial judge agreed. The full court, on appeal, did not. In the Marriage of Pavey (1976)
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Temporary reconciliation
Under the Family Law Act, if you get back together after separation, and this lasts for less than three months, then you can re-start the clock towards the 12-months waiting period before divorce when you separate for the second time. You can only do this once though. If you do reconcile a second time, or if your reconciliation lasts more than 3 months, the calculation of the 12 months will start afresh from the end of the second reconciliation.
Living together and legal separation
Separation does not have to be physical, although for most people, it is. The term ‘separation under one roof’ has developed, indicating that a couple has legally separated but remains living in the same residence, sometimes even sleeping in the same room. Separation under one roof is an increasingly common arrangement as the cost of accommodation in contemporary Australia continues to grow.
If a relationship has been severed by effective communication, express agreement or other clear action, there is no additional requirement that one party must live somewhere else to establish legal separation.
But it can be emotionally, and practically, very wearing to continue to live in close contact with a former partner without the old structures of mutual support, or if there is conflict, particularly. There is not a lot to recommend it if you have any other option.
Centrelink and separation under one roof
If one or both of you receive benefits, Centrelink will assess whether you are part of a couple or separated under one roof on the basis of five factors, including:
- financial arrangements
- nature of the household
- social aspects of the relationship
- presence or absence of sexual relationship
- nature of the commitment
Check with Centrelink for the Relationship Details-Separated under one roof form on which information about these factors can be submitted.
Notwithstanding the unpleasantness, the likely only family law complication arising from separation under one roof is that you will have extra steps to take when you apply for divorce, to prove that you were actually separated for the required 12-month period.
Evidence of the separation date
If you and your spouse have not been physically separated — that is, living in separate accommodation–for 12-months before applying for a divorce, the court will ask you to provide acceptable evidence that you were legally separated under one roof when you make the divorce application.
This may be easier to do if you have considered this requirement ahead of time—preferably, at or around the time of what you want to be considered ‘The Date’ of your legal separation.
Categorical, written, evidence of the date, created at the time of the separation, is the best evidence you can supply. This might be a written note identifying the date of separation. Preferably, this might be signed by both partners but a note signed and dated by you is OK. It might be a copy of the letter you wrote to inform the bank of the date. It might be the email that you wrote to your partner, telling him that you regard the relationship, now, as over. Or a journal entry, or an email to your sister…
You will need also to be able to paint the before and after picture of the overall character of the relationship. This might be tricky.
The key takeaway: Don’t just assume that you and you partner agree about the date of separation. It is an important date in property settlement processes, and it might be in your partner’s financial interests, later on, to dispute it. It is best to have to clear, written evidence of the date of separation that originates at that time.
Drafting a separation-under-one-roof affidavit
When you apply for a divorce, the court will want to see evidence of separation under one roof in affidavit form. An affidavit is a sworn statement of fact. You will need to prepare two of them–one made by you, and one made either by your spouse (in a joint application for divorce) or by someone outside the marriage with knowledge about the end of the relationship: a friend or relative is fine. These should be drafted, then signed and sworn before an authorised person, and then filed in court alongside your application for divorce.
There are formal, legal requirements for drafting any affidavit, and for the contents of a separation-under-one-roof affidavit in particular. But the process is one that lay person can certainly manage, and especially with appropriate legal advice and support.
Tribe can help you to prepare your separation-under-one-roof affidavits. For more details see Divorce Application: Separation-under one-roof Affidavit.