Separation in Family Law

separation in family law

The separation of a relationship can be difficult and upsetting for everybody involved, even at the best of times.  Our staff at Kate Austin Family Lawyers appreciate how stressful this can be and recommend  that you seek appropriate support both from a professional and a personal perspective.

When the decision has been made to separate, decisions will need to be made by both you and your former partner about important issues such as:-

  • How will your property be divided?
  • How will your children be cared for into the future?
  • What will happen with your superannuation?
  • How will you manage your relationship with your former partner?

The meaning of separation is defined within Section 49 of the Family Law Act.  Two things can be noted about the meaning of separation:-

  1. The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of only one of the parties; and
  2. The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

In practical terms if one person decides to separate from the relationship and they advise the other party that the relationship has ended, a separation has occurred. The date that this occurs is relevant to the Family law process, not only for a divorce application but also in relation to a Family Law Property Settlement.

What is separation under one roof?

Separation under one roof is when a husband and wife continue to live in the same house but consider themselves to have separated. There is no limit to how long this occurs. It maybe days weeks or even months.

There must be some evidence that separation has taken place or been communicated by one party to the other.  Separation may be demonstrated by some of the following examples in the situation where there is not a clearly defined communication such as a letter or email.

  • A change in sleeping arrangements within the house
  • A reduction in shared activities or family outings
  • A decline in the performance of household duties for each other
  • A division of finances, for example, the creation of separate bank accounts, or
  • Any other matters that show the marriage has broken down, for example, if you have notified friends and family

Separation, family law and the treatment of assets

Whether the parties were married or in a defacto or same sex relationship, the considerations that are undertaken in determining an equitable division of the assets and liabilities of the relationship are the same.

A court is first to determine whether it is even appropriate to make orders in relation to a property settlement.  If the answer to that question is yes, the court will look at all of the assets and all of the liabilities of the relationship. Sometimes this includes assets acquired following the date of separation although they may be treated differently to those accumulated during the course of the relationship.

The court will then give consideration to the contribution made by each party during the course of the relationship, and sometimes post-separation contributions are factored in as well. An example of this would be where one party continues in the role of substantial care giver to the children of the relationship.

Separation timelines to be aware of – Marriages or De facto Relationships

Parties to a marriage can settle their property settlement or make formal arrangements for the care of their children immediately following separation, and you do not have to wait to be divorced to sort out the future care arrangements for your children or the division of your assets.

Once you are divorced however, you have a twelve month period during which to commence proceedings for a property settlement. Failure to commence proceedings during that period will mean that you have to obtain the leave of the court to pursue your application and leave is not always granted.

For defacto and same sex couples, it is necessary to commence proceedings for a property settlement within two years of the date of separation.

You should be aware therefore that in some circumstances the date of separation can be very important and you may need to provide evidence about the date of separation and how that separation was communicated if there is a dispute about this issue.

Calling a Family Lawyer can be difficult, however we’re here to help if:

  • Your situation involves children.
  • Your situation involved property.
  • You are unsure what you are entitled to.
  • You don’t know what your next step should be.
  • Your partner is talking about moving away.

Call us on (07) 3128 0222
Or ask us a question

Brochures – Kate Austin

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Brochures – Court

Marriages - Seperation
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