Legal separation versus divorce?

Jul 22 2020

When a marriage falls apart, you will hear people talking about a couple having divorced’. Sometimes, people refer to divorced people as ‘separated’. The truth is that under Australian law, being ‘divorced’ or ‘separated’ are two very different things.

What is a separation?

When a couple is separated, it means that they have decided to bring their relationship to an end. This does not necessarily mean that they start living apart from each other. In fact, it is very common to find a separated couple living under the same roof because of the financial implications of one moving out. In Australia, separation does not entail going through a legal process or paperwork.

What is a legal separation?

There is no ability for separated couples to register an official separation under the Australian Family Law. Separation happens when you and your partner stop living together in a domestic or marriage-like relationship.

This being said, “separation” is also a status that must be proven when it comes to legally divorcing your partner,  applying for spousal maintenance or splitting assets.

This is why we often recommend people to confirm a separation in writing as this can constitute a piece of evidence that shows that a separation took place on a particular date.

How to prove a separation?

It’s important to be able to prove a separation in the case of a divorce or property settlement. For example, couples who can’t prove that they have been separated for at last 12 months before filing the divorce application papers can’t be granted a divorce.

In some situations where a proof and a date of separation is required, a number of different factors can also be looked at such as:

  • Your and your partner live at separate addresses
  • You and your partner sleep in different rooms
  • You and your partner have started separating assets
  • You and your partners stopped sharing finances
  • You and your partner no longer socialise together
  • You have told your friends and relatives about your separation.

What is a divorce?

A divorce is very different from a separation. It is the legal and official termination of a marriage. The Australian constitution lays down the conditions for divorce which are:

  • You should be living apart and separate from each other. Having lived under the same roof while separated does not negate this as a condition for divorce.
  • You must have been separated from your spouse for at least one year.

If the above conditions are met, then the parties can go ahead and file divorce papers with the Family Court.

Want to talk divorce or legal separation with us?  We have been family law lawyers for over 27 years and have the experience you need and results you want.