When Did We Separate?

The date of separation with respect to a marriage or de facto relationship is extremely important. It can be confusing at times and it is not always clearly identifiable.

The two main reasons the separation date is important is when applying for divorce and finalising a property settlement. A divorce cannot be granted by the Court unless you have been separated for 12 months. If this is disputed at the time you file your divorce application, it will delay the process until the date of separation can be proved.

Separation Under One Roof
It is common for couples who are separated to live together, even if this is just for a short period of time, following the breakdown of their relationship. This is known as being ‘separated under one roof’. Separation is a difficult time for both parties. However, there are several reasons why separated couples continue to live together in the short term, including (but not limited to) financial reasons, stability for children and/ or simply for convenience.

Proving that You are Separated but Living under One Roof
The evidence of separation needs to be put before the Court in an affidavit. In your affidavit, you need to prove that there has been a change in the marriage, gradual or sudden, showing you and your spouse have separated. You will need to explain any:
• change in sleeping arrangements
• reduction in shared activities or family outings
• decline in performing household duties for each other
• division of finances; for example, separate bank accounts, and
• any other matters that show the marriage has broken down; for example, if you have notified family and friends of your separation.
Your affidavit should also explain:
• Why you continued to live in the same home following separation and what intention, if any, you have of changing the situation.
• Living arrangements you made for any child of the marriage under 18 years during the time you were living under one roof.
• What government departments you have advised of your separation if you receive a government benefit; for example, Centrelink or the Department of Human Services (Child Support). If correspondence has been received from these departments about your separation, attach a copy to your affidavit.

The Court will determine each application based on each individual circumstances. Therefore, it is in the parties’ best interest to seek advice if they are unsure whether they have satisfied the 12 months separation period requirement.

If you would like to file a Divorce Application or find out more about your rights and options, Straits Lawyers are here to help. Simply send us an email at info@straitslawyers.com or give us a call on 8410 9069 to arrange an appointment for an online interview.

Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.