Separation

Separation is the end of an intimate partner relationship.

While the term ‘separation’ is not defined in the Family Law Act 1975, over time a body of caselaw has evolved to assist in determining when a separation has occurred.

Most significantly, the case of Pavey v Pavey (1976) FLC 90-319 established that physical separation is not required to evidence the breakdown of a relationship. Parties can remain living under the one roof, and still be considered separated for the purposes of the Family Law Act 1975.

The cases tell us that for separation to be established, three elements must be evident:

1. One or both parties must intend to end the relationship;
2. The parties must act on that intention or act as though the relationship has come to an end;
3. Where one party alone considers that the relationship is at an end, that party must communicate that attitude to the other party unequivocally.

While there are often good reasons why parties continue to live under the one roof following separation, doing so can present a range of practical issues, for example, conflict around the actual date of separation.

At Empower Family Law and Mediation we recommend that immediately upon separating or very soon afterwards, you confirm the end of the relationship to your ex-partner in writing.

Email is preferable as it will contain evidence of the date and time on which the email was sent.  The email or note confirming your separation may later be needed as evidence when you apply for divorce.

Similarly, if you continue living under the one roof you might need to provide evidence of your separation to the Court if you cannot agree the date you separated or if there is disagreement about your post-separation contributions. 

At Empower Family Law and Mediation we recommend that if you are separated under one roof you:

1. Make a clear evidentiary record of the date of separation, for example by confirming your separation in an email to your ex-partner either on the day of separation or within a few days after;
2. Sleep in separate rooms and make a diary note of when you commenced sleeping separately;
3. Advise family and friends of your separation;
4. Cease socialising together;
5. Minimise the household chores and services you undertake on behalf of your ex-partner;
6. Separate your finances;
7. Keep records of your post-separation contributions, both financial and non-financial.

The date and circumstances of separation are also relevant to property matters, either for married couples or de factos.

In terms of married couples, the court will examine the contributions made by each party following separation when determining how assets may be divided. Assets that came into existence after the separation process had begun may be treated differently to those that were accumulated during the relationship. If that asset is substantial, it may affect each party’s financial settlement significantly. Clear evidence of the date of separation will reduce the likelihood of disputes about how post-separation contributions are dealt with.

Also of significance for separating couples are the time limits which apply to issuing proceedings for property division and spousal maintenance in the Federal Circuit and Family Court of Australia following separation. If you separate from your married or de facto partner you must commence your property settlement or spousal maintenance proceedings within the specified time limits.

• For married couples, the time limit to commence property proceedings is 12 months from the day on which a divorce become final.
• For de facto couples, the time limit is 24 months following the end of the de facto relationship.

In some circumstances the Court will grant parties leave to apply out of time, however leave will only be granted if a party can demonstrate to the Court that a party or a child to the relationship will suffer hardship if the application is not allowed. In weighing whether to grant leave, the Court will consider the reasons for delay, the prospects of the application succeeding the parties’ respective legal costs if the matter proceeds and the prejudice to the other party if the application is permitted. In short, applications to proceed out of time can be costly, stressful and easily avoided.

To avoid the stress and cost of an application to proceed out of time, it is critical that you have sought legal advice and satisfied the various pre-action procedures required by the Federal and Family Circuit Court of Australia (Family Law) Rules 2021 well before the time limits are reached (for example, you must have taken genuine steps to attempt to reach agreement, including exchanging written settlement proposals and, in most circumstances, attended mediation).

At Empower Family Law and Mediation we can advise on all aspects of your separation, including helping you to ensure your separation date is properly documented, arming you with a separation checklist to help you navigate the early days of separation and working with you to ensure all avenues for settlement are exhausted well in advance of the statutory time limits. 

From your very first conference with us you will know where you stand, what your options are and what to expect.

That is why your first 30-minute consultation with us is FREE.

Let us be your voice in troubled times.