Separation

Parties separate when at least one of the spouses forms the intention to end the relationship and then acts upon it, usually when one party moves out of the matrimonial home.  

However, it is possible to be separated whilst both parties reside in the same accommodation. In some circumstances, Courts will recognise a couple as having separated even though they are still living in the same household. Usually you will need to provide evidence of separation, including confirmation of:

  • Sleeping in separate bedrooms;
  • Lack of a sexual relationship;
  • No longer socialising as a couple; and
  • No longer providing domestic assistance to each other.

If the parties have been married for less than two years, a mandatory counselling requirement exists and a Divorce Application cannot be filed within the two year period unless a prescribed counselling certificate accompanies the Application. 

No documents or formal legal steps are required for separation to occur. If you are intending to later seek a Divorce however, you will need to remember the date of your separation to include in your Divorce Application.

From the time of separation, disputes over children, property, child support and maintenance can be dealt with. You do not have to wait for Divorce to deal with these issues. 

One of the first steps that you should take, even prior to separation, is to seek legal advice. Even if there is agreement between you and your spouse, a Solicitor will be able to advise you of the best way to implement any agreement between you and remind you of things you may have forgotten about e.g. superannuation, gifts, insurance policies, benefits under Wills etc.

In every case where there is an agreement concerning either children or a division of property, you should have the agreement formalised, usually by way of a Court Order or Agreement. This is likely to overcome possible disputes in the future and protect your position.

Unless the agreement that you have reached with your spouse is formalised, the agreement will not be binding in the future and may result in your spouse making a further claim on your property up to 12 months after the date of your Divorce, or reneging on parenting arrangements. 

To read more on the importance of formalising negotiated agreements, and the grave risks of not doing so, refer to our Factsheet "Formalising negotiated Agreements and Settlements".