Separation is a complex and emotionally charged event. In Australia, the concept of separation is defined and governed by the Family Law Act 1975 (Cth) and related provisions.
In the context of Australian family law, separation occurs when one partner communicates to the other their intention to end the relationship and then acts on that intention. This means the couple starts living separately and apart, even if they continue to live under the same roof. For married couples, separation is the preliminary step before one can apply for a divorce.
De facto relationships are those where couples live together on a genuine domestic basis but aren't legally married. In Australia, the law provides many of the same rights to de facto couples as it does to married couples. When a de facto relationship ends, it's considered a separation. The division of property and other financial matters are handled similarly to the way they would be for married couples, with the best interests of the children being paramount.
Separation becomes more intricate when children are involved. Decisions around where the children will live, who they will spend time with, and other parenting arrangements need to be made.
Best Interests of the Child: Regardless of the nature of the couple's relationship (married or de facto), decisions related to children post-separation should prioritize the child's best interests.
Parenting Plans: Many separating couples opt for a parenting plan. This written agreement outlines how children will be cared for, including details about living arrangements, education, healthcare, and more.
4. Effect on Parenting
Separation can significantly impact parenting:
Shared Responsibilities: Both parents continue to share parental responsibilities unless there's a court order stating otherwise.
Decision Making: Parents need to collaborate on significant decisions, from education choices to healthcare decisions, unless a court order outlines different terms.
Parenting Orders: If parents can't agree on arrangements, either party can apply for a parenting order from the court. This order will determine aspects like who the child lives with, spends time with, and other specific details.
Separation and Divorce Applications
For married couples seeking a divorce in Australia:
12-month Separation Period: Before filing for divorce, couples must be separated for at least 12 months. This period ensures that there's no likelihood of reconciliation.
Living Under One Roof: Couples can be considered separated even if they live under one roof. However, they must prove to the court that they were genuinely living separately during that time.
Divorce and Parenting: While a divorce application focuses on ending the marriage, it doesn’t resolve issues related to children or property. These matters must be addressed separately, either through mutual agreements or court orders.
Separation, whether for married or de facto couples in Australia, has extensive implications under family law. Especially when children are involved, the process requires careful navigation to ensure their well-being and uphold their rights. For couples contemplating or undergoing separation, it's crucial to understand the legal landscape and seek appropriate advice to make informed decisions.