What is the definition of separation? How do I separate? What are the legal consequences?
Separation sounds like a formal process, but it’s actually much simpler than that.
In Australia, you cannot file for “legal separation”. There is no formal method or legal document for making separation official.
How Do I Make My Separation Date Official?
Separation is simply when you stop living together, but can happen when you still live in the same house, or are “separated under the one roof”.
Most people establish separation using some form of external evidence of the date of their separation. If you live separately, there will be a rental lease, a sale of a home, or change of residence for one or both of you that creates a record.
There might be other events that are recorded, such as a change to mailing address at school or work, banking arrangements, emails, notifications to schools, or mediation about your children’s residence. All of that information can be used to establish a separation date if needed at any time.
Separation in the Same House
If you separate but remain living in the same house, it is a good idea to actively create a record of the date you agree you separated.
The Date of Your Separation can be Important
The date can then be used in a divorce application, or to establish the time limit for filing court proceedings for division of property if you have lived in a de facto relationship.
If you have lived in a domestic partnership/de facto relationship, any court proceedings for division of property must be filed within two years of the date of your separation.
If you are formally married, you cannot apply for a divorce unless you have been separated for a year and a day, which includes being separated in the same house.
The law accepts that there may be differences in the treatment of income, gifts, inheritances, purchases and liabilities acquired during a marriage or relationship, and those acquired after separation. For that reason a date for separation can have relevance to property proceedings.
You may need to advise Centrelink or the child support agency of the date of your separation.
If you’re not sure if you want to separate, the best idea is to talk to a psychologist and discuss what’s right for you. You can find a psychologist through the Australian Psychological Society, or ask your GP for a referral.