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If separation is in dispute

Information about whether the couple have actually separated.

Whether the relationship was a de facto or marriage there may be a dispute about the date that the couple separated.

Separation after de facto relationship

If the couple were unmarried, the date of separation may be an issue in dispute if the parties:

  • have not registered or declared their relationship or
  • do not have a child

it may be difficult to establish that the court has jurisdiction to decide how their property should be divided if they separated before they were together for 2 years.

See ss. 44(5), 90SB—Family Law Act 1975 (Cth).

Separation after marriage

If the couple were married, they must have been separated for at least 12 months before they can apply for a divorce. They may also want to avoid being categorised as having been in a short marriage.

See Divorce—Eligibility for divorce.

Evidence help to decide if a couple have separated

If the parties dispute whether they have separated or not the court will look at whether the life of the relationship (or consortium vitae) has been destroyed. This will depend on the particular facts and circumstances of an individual case. The court will look at the following factors to decide whether the relationship has actually broken down:

  • communication between the parties and whether they have sex
  • whether they live together
  • if they spend time together socially and are recognised as a couple
  • if they look after and care for each other
  • how they conduct their financial arrangements
  • if there is any reason for their separation (if one partner is away on business, on holiday or separate due to ill health)
  • the care and support that the parties are giving to any children of the relationship.

Fault is not relevant

The court is not concerned about the reasons for the breakdown of the relationship, they just need to be satisfied that separation has taken place and that there is no chance that the parties will resume their relationship.

Independent witnesses may be needed

Where evidence of separation is needed for divorce proceedings, or for legal proceedings over property, an independent witness may be needed to verify when the couple separated or that they are living separately.

See Separated under one roof.

More information

Legislation

Family Law Act 1975 (Cth)

  • s. 44(5)—when a party may apply to court in a de facto relationship
  • s. 44(1B)—short marriage
  • s. 49—meaning of separation
  • s. 48(3)—a divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed
  • s. 90SB—when a court may make an order in a de facto relationship (if the relationship is at least 2 years or if there is a child of the relationship)
  • s. 90SE—power of court in de facto maintenance proceedings
  • s. 90SL—declaration of interests in property between parties to a de facto relationship

See Family Law Act 1975 (Cth).

Reference

The Law Handbook

Fitzroy Legal Service’s Law Handbook has the following information about separation that relates to divorce:

Cases

In the marriage of Pavey Fam LR (1976)—looks at the elements that indicate presence of a relationship and, if lacking, may be used to decide if separation has actually taken place.

In the marriage of Falk Fam LR (1977)—held that for separation to occur there also needs to be communication to the other party.

Updated