Separation and divorce are pivotal stages in the dissolution of a relationship, and whilst the terms are often used interchangeably in everyday language, they hold distinct legal meanings under Australian family law.
What Is Separation?
Separation occurs when one or both partners in a marriage or de facto relationship decide to end their relationship.
Unlike divorce, separation does not require formal legal proceedings. It is marked by the intention of at least one party to no longer be in a romantic partnership.
In practical terms, separation is usually signified with the parties starting to live apart, however it is also possible for couples to be “separated under one roof” if circumstances prevent physical separation, such as financial constraints or shared parenting responsibilities.
In such cases, the couple must typically demonstrate to the Court that they are no longer living together as a couple, and this evidence would include changes in their financial arrangements, domestic responsibilities and social interactions and public reputation.
While no official documentation is needed to signal a separation, it is important to note and record when separation occurs, as it is a particularly significant date in both property settlement and divorce proceedings. An ambiguous or disputed date of separation can have major implications for litigation, and will often make it considerably more complicated, lengthy and expensive.
What Is Divorce?
Divorce is the formal legal process that ends a marriage.
Under Australian family law, the only ground for divorce is the irretrievable breakdown of the marriage, demonstrated by 12 months of separation. Unlike in some other jurisdictions, Australian Courts do not require parties to prove fault, such as adultery or misconduct. This no-fault system emphasises the absence of blame.
To apply for divorce, either spouse can lodge an application in the Federal Circuit and Family Court of Australia. For couples with children under 18, the Court must be satisfied that proper arrangements have been made for the children’s care, welfare and development, before granting a divorce.
It is important to note that divorce is distinct from property settlement and parenting arrangements. A Divorce Order only terminates the marriage, but it does not resolve disputes about finances, or parenting arrangements. Those matters require separate legal processes and outcomes.
Key Legal Distinctions
Legal status
- Separation: Simply marks the end of the relationship. No documentation is required, unless the date is contested and evidence is needed in Court.
- Divorce: Officially ends the marriage. A Divorce Order is issued following a Court hearing.
Timing and duration
- Separation: Can happen immediately when one or both partners decide to end the relationship.
- Divorce: Requires 12 months of separation before an application can be filed. This period applies whether or not separation occurs under one roof, however a more rigorous application must be made if any of the 12 months of separation occurred whilst the parties were separated under one roof.
Scope of legal impact
Neither separation nor divorce, as an isolated act, directly affects a party’s rights with respect to property settlement or parenting arrangements, however they both start the clock for time limits
After a Divorce Order is granted, parties only have 12 months to initiate proceedings for property settlement or spousal maintenance. In the case of a de facto relationship, they have 2 years from the date of their separation.
A divorce also enables the spouse parties to remarry. A party can only be married to one person at one time, and entering into a marriage whilst already married is a federal offence in Australia, known as bigamy.
Final Thoughts
While separation and divorce are distinct, they are closely interconnected stages in ending a marital or de facto relationship.
Understanding the nuances of these processes can help individuals navigate their rights and responsibilities more effectively during what is often an emotionally challenging time, whereas not managing them appropriately can have significant consequences, but which are usually not apparent until months or years after the fact. It is therefore important to seek specialist family law advice.
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