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How to tell IF you have actually separated and WHEN, most people don’t know!

Separation between de facto partners and married couples

The date of separation is an important one in the context of family law and for de facto relationship law.

The separation date is relevant to issues such as when divorce can be sought, when limitation period might expire, contributions for property settlement and other issues.

What is separation?

I assume most people would think they know whether they are separated or not however surprisingly it is often an issue. This is particularly the case when there is a reason to make it an issue such as when one party alleges a limitation period has expired.

In legal terms a “separation” is more than a physical separation. It involves the breakdown of the consortium vitae which is a fancy Latin way of saying “marital relationship”.

What was said of marital relationship in the case of In the Marriage of Todd No 2 has often been repeated by courts as being correct:

“What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of the children of the marriage.”

Thus the notion of separation occurs when there is a breakdown of the above marital relationship, in a de facto relationship, or marriage.

This means people can be living apart and not separated; or living together and be separated, i.e. “separated under one roof”.

The practicalities of separation

To determine the separation date, three other conditions are necessary. These are:

  1. One or both people in the marriage or de facto relationship form an intention to separate;
  2. The person forming the intention to separate acts on the intention – because marital relationships vary for each couple, this can usually be determined by examining the relationship before and after the alleged separation date. Casual acts of sexual intercourse after separation don’t necessarily mean you’re back together but it could form part of the evidence to support a resumption of the marital relationship;
  3. Communication of the intention to separate – This was mentioned in the case of Todd No 2 referred to above however it was subsequently recognised in In the Marriage of Falk. This condition requires that communication be direct or indirect by words or conduct.

I suppose you could say considering the above breaking up by email or text is the smart thing to do if you want to be clear about the separation date.

Perhaps it’s better etiquette to have the “it’s not me – it’s you” conversation (did I get that right?); and follow up with a gentle email or text message to confirm the date.

Why is the separation date important?

The main reason why separation date is important is in relation to divorce, the breakdown of a de facto relationship, and limitation periods.

The Family Law Act 1975 replaced the fault based grounds for divorce that existed previously with the one ground, that is, “irretrievable breakdown of the marital relationship”.

This ground for divorce is established by a continuous period of separation of not less than 12 months. Thus separation is necessarily established to obtain divorce.

After divorce has been granted a limitation period for property settlement in marriage operates 12 months after the date of divorce. This means if you get divorced you may not be able to seek property settlement without the permission of the court.

In de facto relationships the limitation period is 2 years after the end of the de facto relationship (date of separation).

Sometime the court will treat contributions people have made to property after separation differently in assessing property settlement. There have been a number of cases in which people have had windfalls such as Gold Lotto wins or inheritance at about the date of separation, or shortly after, that makes the date of separation an issue.

In the context of child support and child support calculator

Section 25 of the Child Support Assessment Act 1989 provides one of the conditions to obtain child support is that the applicant is not living with the other parent as his or her partner on a genuine domestic basis.

Section 9 provides “separation” means “circumstances in which the parties to a marriage are, under the Family Law Act 1975 taken to have separated”. Thus the principles are the same and the date separation occurs is relevant.

The child support calculator or child support estimator link is available in an earlier blog post for anyone wanting to obtain an indication of child support payments payable.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. We are Brisbane Family Lawyers servicing all areas.




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