Separation in family law is referred to as the point in time when you and your partner bring an end to your marriage/de facto relationship. It can be difficult considering whether to separate from your partner as it becomes difficult to reconcile your relationship once either of you decide to separate. In addition, separation not only has an effect on you and your partner but can also have significant social impacts on your children if they are caught up in the process.
Here are some important considerations to keep in mind when deciding whether to separate.
Relationship less than 2 years?
To apply for divorce in Australia, you must be separated for at least twelve (12) months, and it must be established that the marriage has ‘irretrievably broken down’.
If you have been married for less than two (2) years, you will need to attend marriage counselling and demonstrate to the Court that you and your partner have attempted to reconcile your marriage. A counsellor would be able to work through any unresolved issues, provide emotional and practical support, which will allow you to ultimately determine whether a divorce or separation is the answer.
In Australia, it is generally a requirement that a person is in a ‘de facto’ relationship when there has been a level of cohabitation, intermingling of finances, and the relationship is for a period of two (2) years. If your relationship with your partner is less than 2 years, than a Court may not have the jurisdiction under the Family Law Act 1975 (Cth) to deal with your future property settlement.
It is important that you can agree on the exact date of separation. In Australia, there is a time limit of two (2) years from the date of separation through which to engage in property settlement proceedings. As such, knowing the exact date of separation becomes important when understanding when o being an action to a court, or, in the alternative, when to stop your former partner from attempting to go to court.
Re-arranging your finances
If you are considering separating from your partner, you may want to consider taking steps to re-arrange your finances. This may include:
- Setting up a new bank account in your sole name and having your income re-directed to that account;
- Organise to have your mail re-directed to another address or set up a PO Box;
- Understand the joint finances and what household utilities are in your name/joint names – depending on the circumstances, you may want to change the account holder prior to separation to make it easier when determining who is to pay what;
- Begin to collate your financial documents – for more information, see our article on the ‘Duty of Disclosure’
- Change passwords on any of your individual online accounts (i.e. banking, social media) to protect yourself if the separation is not amicable; and
- If you and your partner have children, it is best to be familiar with the children’s schooling, any medical issues, and what level of involvement you want to have with the children if you decide to separate.
Separation under one roof
In many circumstances, it is not a financially viable option for one party to leave the house when a separation occurs. Depending on whether you and your partner are amicable in your separation, and particularly when children are involved, it may be possible that you can separate whilst still living in the same property.
If this is the case, then it is important that a third party (i.e. a friend, neighbour, counsellor) is fully aware that you and your partner have separated. This is important so that there are no issues determining the date of separation.
In addition, if you wish to divorce in the future, that third party may need to provide an affidavit stating that you and your partner are separated.
If you do not believe that your partner will react well to separating, then you may need to consider alternative accommodation options and whether this is a financially viable option for you. Furthermore, it will also be important to consider whether there will be any risk of domestic violence.
How can we help?
At JB Solicitors, we can provide you with proper legal advice as to important factors if you are considering separating from your partner. Whilst it is important that you take the appropriate measures to protect yourself and your assets, you must also not do anything to dispose of assets or attempt to ‘hide’ assets in any way. Should you separate and need to engage in property settlement negotiations, you must be honest with your financial position.