Many people are not clear about the meaning of separation for the purposes of family law

Many people are not clear about the meaning of separation for the purposes of family law. What does it mean to be separated for the purposes of family law?

It is important to know and understand that there are different types of separation. Firstly, there is separation under one roof. This occurs where spouses or de facto partners are separated and are no longer in a relationship together but still remain living under the same roof. There is also separation where the spouses or the de facto partners are no longer living together in the same residence.

The date of separation is very important in a client’s family law matter, particularly in property settlements. Have you kept a written record of the date of separation? Have you communicated clearly to your estranged spouse/de facto partner that you are separated?

Often, it is quite clear when the separation occurs - there is an abrupt event that ends the marriage. For instance, one spouse may leave the home, or one spouse may move to a different bedroom. However, often a marriage gradually deteriorates over time, and it is not very clear when the marriage ended.

When deciding what the separation date is, a divorce court will look at all the facts of your and your divorcing spouse’s relationship. No one fact is determinative.

Factors that ought to be examined are:

• physical separation (for instance, living in separate bedrooms)
• absence of sexual relations
• discussion of family problems
• communication between the spouses
• joint social activities
• meal pattern
• performance of household tasks
• method in which spouses filed income tax returns
• when a spouse makes plans for his assets as a separated person
• adultery
• communications about separation
• consultation with a lawyer
• joint vacations
• gifts between spouses
• joint activities at home together (TV watching, tea in bed, etc.)
• visiting each other’s relatives

Other cases have provided other factors to examine in determining the date of separation. These factors are:

• appearance to outside world
• gifts and cards sent in joint names
• change of beneficiaries on insurance plans, purchase of property without consulting the other spouse
• changing will
• communication of marriage breakdown to others
• corroborating evidence of third parties
• interest by spouse in trying to make the marriage work
• collaboration on renovations to home
• major arguments
• unsigned previous separation agreements
• religious beliefs about initiating separation or divorce
• one divorcing spouse telling the other that she did not love him or want to have anything to do with him
• celebration of holidays and important events (weddings, anniversaries, funerals) together

These are all things that you should know and be aware of if your relationship breaks down and you then need to finalise your property settlement and to also finalise your divorce if you are married.

For detailed legal advice about separation, your property settlement or any other family law issue, please call our team to speak to a family lawyer with expertise.