If you are feeling confused, that might be because the Australian Family Law Act is surprisingly quiet about the definition of “separation”.

So how do you know if you are separated?

Here are some of the ways:

  1. Because you and your partner agree that you are separated
  2. Because one of you tells the other person that they see the marriage or relationship as being over
  3. When all or most of the elements of a marriage or de facto relationship go missing, such as:
  • cohabitation
  • a sexual relationship
  • plans for and commitment to a shared life
  • being seen socially as a couple
  • sharing income and expenses or intermingling finances

Separation can happen on the decision of one spouse/partner only. The fact that the other person does not wish to separate doesn’t prevent the separation.

Separation can happen while a couple continues to share the same residence. In these times of high accommodation costs, that is very common, at least in the early days of separation. It is also common for parents to live in the same house to continue to care for their children or to give the children stability, but still, be separated.

When does the date of separation matter?

  • When applying for a divorce, which you can only do after being separated for one year
  • If you are considering how post-separation assets and liabilities are to be evaluated
  • For agencies such as Centrelink, (sometimes) private health insurance
  • When thinking about your Will and death benefit nominations for superannuation and life insurance

How can you record the date of separation?

There is no official way of doing this. Usually the fact of moving out of a home, words said in email communication, counselling sessions, letters from lawyers, changing financial arrangements or arranging for children to spend time in two households will pinpoint the date with reasonable accuracy. Or you and your ex can agree and commit that date to writing if you choose.

Does a marriage end with Separation?

No. For a marriage to be legally at an end, you must be divorced. You must work out your arrangements for division of property within one year of being divorced.

Does a de facto relationship end with separation?

Yes, but de facto couples have two years after their separation to work out arrangements for division of property.

Is it possible for two people to have different ideas about their separation date?

It definitely is possible and happens quite commonly. That’s because most relationships don’t end with a single event, and rarely is there a precise moment when a marriage or relationship is over.

If you are worried about your separation date for any reason, it’s best to obtain some legal advice, which you are welcome to do by calling MELCA on 9078 6980 for connection to one of our collaborative lawyers.