Separation can be difficult at the best of times.
The parties do not need to agree or make that decision jointly, it is sufficient for one party to reach that decision.
The date of separation is the date on which one party to a marriage or de facto relationship decides to end the relationship and communicates that decision to the other party.
The date of separation is relevant for various reasons including the divorce application, but also in relation to property settlement.
Usually, the date of separation is undisputable, and often, it is the date on which one party leaves the marital home but there are also times when the parties continue to reside under the same roof. In those circumstances, the Court will require evidence (by affidavit) that the parties have, in fact, been separated for the requisite period of 12 months to make an Application for Divorce.
There is no one particular determinative factor to determine the separation date but some of the factors that the Court will consider, to determine separation are:
- Whether or not the parties continued to perform domestic duties for each other;
- Whether or not the parties continued to represent themselves as a married/de facto couple to family or friends or indeed, whether they informed government authorities such as Centrelink or the ATO that they were no longer in a relationship;
- Whether or not the parties separated their finances in any way; and/or
- Whether they continued an intimate relationship;
In relation to property settlement, the date of separation can be relevant to determine the contributions made by each party relevant to property settlement. Contributions made after the date of separation may be treated differently to those made during the relationship. For example, a sizeable inheritance received post separation may have a substantial effect on the outcome on your property division.
For de facto couples, any application for property division must be made within 2 years of the date of separation. This is a crucial time limit as only exceptional matters will be given the Court’s approval to be heard after this time.
Making the decision to separate is always difficult, however, having a certain or concise separation date will provide some clarity in relation to moving forward and establish your time limitations.
It is important to see an experienced family lawyer if you are considering a separation or as soon as possible after your separation date.
White Berman Grant Legal will guide you and provide you with advice on your rights obligations and entitlements in relation to your property settlement. Please contact our Adelaide Lawyers and Modbury Lawyers now to make a no obligation appointment.