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