Across Australia, State and Territory Governments have put in place various restrictions as a result of Covid-19.

These restrictions can make the difficult process of separating even more complex.

Usually, separation occurs when one party moves out of the family home and starts living elsewhere, such as at a rental property or with friends or family. Separation can also occur when a marriage has ended but the parties have nevertheless remained living together in the same house. This is often called “separating under the one roof”.

For a variety of reasons, parties who separate during the Covid-19 restrictions, may be inclined to remain living together under the same roof. If so, it is crucial that the parties consider the possibility that their relationship may not always be as amicable. The parties may eventually disagree about the date that separation actually occurred. This can impact upon the timing of a divorce application as well as property settlements and parenting arrangements. This can also lead to expensive litigation to prove the date of separation. In determining the date of separation, the Court may need to consider a range of factors including but not limited to:

  1. The manner in which the parties communicated to one another about their separation;
  2. The living arrangements before and after separation (such as whether the parties continued to live in the same house and whether they continued to share a bed and maintained a sexual relationship);
  3. The public appearance of the relationship before and after separation (such as whether the parties continued to attend important events such as weddings, birthdays and functions as a couple); and
  4. The parties’ financial arrangements before and after separation (such as whether the parties continued to operate joint finances or moved to separate bank accounts and maintained their personal expenses).

It is therefore crucial that parties collate evidence to corroborate their claims about separation. When it is safe to do so, communicating clearly to the other that their relationship has ended irretrievably, ideally in writing, is recommended. Corroboration from a third party (such as a friend or family member) can also assist in resolving disputes about the date of separation under the same roof.

People separating from marriages should also consider when the time may be right for them to commence the process of dividing their assets and negotiating parenting arrangements. In doing so, married couples should be mindful that:-

  1. The Court must be satisfied that the couple has been separated for 12 months before they will grant a Divorce Order. If there is a dispute about the date of the final separation, a party who is seeking a Divorce may need to provide the Court with evidence to substantiate the appropriate separation date (such as an Affidavit detailing their account and providing supporting evidence as well as Affidavits of any third parties who can corroborate their assertions).
  2. If the parties are unable to agree about the division of their assets, they have 12 months from the date of the Divorce Order in which they are able to apply to the Family Law Courts to determine an appropriate division. If they do not apply within this time limit, the Court can refuse to determine the matter unless hardship is substantiated.

Obtaining timely advice from an experienced Family Lawyer can minimise any dispute about the date of separation and can assist parties to divide their assets and implement parenting arrangements.

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