Do you have a friend or relative who has just separated? If so, the information below should help.
What is meant by separation?
Separation in Family Law is defined as the bringing to an end of a marriage or de facto relationship (which also includes same sex couples). There is no need or ability to register a separation under Australian Family Law.
Often couples will agree on the date of actual separation but sometimes there is a dispute about the date the couple or one of them decided to end the relationship permanently. If the date of separation is disputed by either party this becomes a factual issue which must be proven. There might be a number of ways of confirming separation, including possibly an email or text confirming in writing to your partner that you acknowledge the separation is intended to be final. For some couples the date is clear cut for others especially if there are attempts at reconciliation or separation is alleged to have commenced while still living in the same house a dispute can occur about the actual date of separation.
What Relevance has the date of Separation?
The date of separation usually has little relevance to parenting matters but is relevant in relation to a number of other family law scenarios.
De Facto Relationships
Property Matters:
(a)To apply for a property settlement in de facto relationships you must bring the application within two years of the date of a separation and if there is a dispute about the date of separation, you must provide evidence to support your claim.
(b) If the de facto relationship existed for less than two years parties usually are not eligible to apply for property settlements under the Family Court Act unless there is a child of the relationship or some very significant financial contributions made during the relationship.
Married Couples
(a) Divorce: If you are married and wish to obtain a divorce you must prove you and your spouse have been separated for at least 12 months before you file your Application for Divorce, otherwise the Court will not grant your divorce. The date of separation is recorded on the Application for Divorce and is sworn or affirmed to be true and correct by the Applicant.
(b) Property Settlement: You can commence an application for property orders immediately on separation but if you have not done so and are divorced you have a time period of 12 months after the date of the divorce to bring a property application before being out of time to pursue a property application under the Family Law Act.
What about if you still live together?
Separation can take place even though the parties live under the one roof and it can also be a gradual process. In these cases, the Court will
require affidavit evidence not only from the applicant about their situation but usually also from a third person who can testify to the situation.
The court must examine a number of factors to determine when and if a separation has taken place. Those factors can include whether the parties:
- Slept in separate rooms or together after the alleged date of separation;
- Performed domestic duties such as cooking and washing for each other after the alleged date of separation;
- Separated their financial affairs to any extent after the date of separation;
- Lodged or signed any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single person, as opposed to a person in a relationship;
- Continued to be intimate after the date of alleged separation; and
- Made it publicly known (such as by telling friends and family), that they had separated.
Ten things to consider if a person has just separated:
- Seek advice from an experienced Family Lawyer about the circumstances of your particular relationship – not all relationships have the same problems or need the same action.
- If you have children consider contacting a family relationships adviser/dispute resolution service to discuss what parenting plan should be best suited to the children’s needs. There are useful websites you might like to visit for more information, including
https://www.familyrelationships.gov.au
https://raisingchildren.net.au/
https://raisingchildren.net.au/grown-ups/videos/separation-divorce
- It usually is helpful to keep a record regarding the parenting arrangements that occur after separation and to record disputes or difficulties that need to be resolved. It is a good idea to text or email your ex-partner to confirm planned arrangements to collect or return the children at various times so there is less opportunity for misunderstanding.
- You should also keep a record of any incidents threats or behaviour which is unreasonable or threatening. If there has been family violence in the relationship you may need to seek a Restraining Order through the police or the Local Court.
- You might also contact the Child Support Agency or investigate its website and find out how much is to be paid or is payable.
https://www.servicesaustralia.gov.au/individuals/child-support
- You will usually need to understand the financial situation of you and your partner for discussions about property settlement or child support, so it is a good idea to photocopy or take a photo of all the financial documents to which you have access and put them in a secure location (this should not be your home or motor vehicle).
- You may need to contact your bank or financial institution in writing (by fax or email – with your signature appearing) to stop joint funds being removed or liabilities increased.
- If you have appointed your partner as your Power of Attorney, usually you should revoke that appointment, and arrange another person to be appointed as your Power of Attorney.
- Consider whether your nominated death beneficiary for your superannuation entitlements is appropriate.
- Review your Will and consider if it is still appropriate and if you do not have a Will, it would be a good idea to arrange to make a will.
If you need more information, or if someone you know needs help, get them to call us to speak to one of our solicitors on a no obligation basis on 02 9699 9877 or email us [email protected].