The terms ‘separation’ and ‘divorce’ are often used interchangeably by people but in fact, in the unfortunate event of a relationship breakdown, they mean quite different things and carry different legal implications.
In the area of family law, separation is a recognition between either a married or de facto couple that their relationship has broken down. It generally involves specific communication between the couple, or from one half of the couple to the other, that the union is over.
It’s common in modern society – particularly where the relationship involves children – for people to be separated but remain living under one roof.
Where two people are married, under the Family Law Act 1975, a couple may only apply for divorce after they’ve been separated for 12 months.
It should be noted the 12 months of separation does not necessarily have to be continuous. If you reconcile with your ex for a period of less than three months and then break up again, the court will not consider this as substantial and will add the previous and post periods apart to decide you’ve been separated for 12 months. If you make up for more than three months, then the required 12 months begins again from the most recent separation date.
A common question is whether having sex with your ex on one occasion would mean you’re “back together”. The court will generally consider one act in isolation as not constituting the resumption of the relationship. If there is an ongoing sexual relationship, as well as joint attendance at social/family events, operating a joint bank account, etc., the court may assess the couple as not having actually separated.
The fault of either party in causing a marriage to end is no longer assessed under the Family Law Act. It’s enough to show that there has been an “irretrievable breakdown” of the marriage following 12 months of separation.
If all other conditions are met, you can make a divorce application and the court will grant what is called a Divorce Order. This order confirms the court is satisfied that all of the legal requirements have been met to end the marriage and becomes final one month and a day later.
From bank accounts to changing your name, applying for a passport, or if one party plans to remarry, the implications of confirming your divorced status will require both parties to have a copy of the Divorce Order.
Also worth noting is that if you try to divorce while still co-habiting with your ex-partner, you will need an affidavit signed by a witness(es) which explains why both parties continue to live under the one roof despite the relationship ending. This will increase the overall cost of the divorce.
Other important considerations in a divorce
Divorce proceedings between a couple do not mean they can’t address issues such as property settlement, spousal maintenance or parenting arrangements for children prior to the divorce, even if they’re separated under one roof. Many legal experts will even suggest you act in these areas as soon as possible, even if divorce is planned, to ensure they are decided for the benefit of all concerned in a way that is clearly separated from the legal ending of the relationship.
Ideally, a trip to court can be avoided on issues such as property settlement and custody via out-of-court means such as mediation and dispute resolution. Expert legal advice can greatly assist this process.
Observing time limits
In both separation and divorce, there are recognised time limits on when certain actions can be taken, such as the requirement of 12 months separation before divorce.
For example, once a Divorce Order has been made, a couple must commence proceedings on property settlement and spousal maintenance within one year of the date of the divorce order, which is why it is suggested above that this process be started as early as possible.
For those people who have been in a de facto relationship, property settlement or spouse maintenance proceedings must be started within two years of separation.
The importance of legal advice
As should be clear from the points above, separation and divorce can be complicated matters which can become messy and time-consuming without planning, proper documentation and observance of time limits.
This is where an experienced legal professional in family law matters can provide invaluable advice and guidance. Their assistance can help clarify the path forward and ensure any agreements are formalised so that the end of the relationship is properly finalised, preventing either party from trying to ‘revise’ the arrangements afterwards.