One of the signs that a marriage has come to an end, is if the parties to the marriage have engaged in the process of separation. Although the term may imply that both parties have agreed to undertake the action of separation, there is however no requirement that the decision to separate must be mutual, as outlined in s 49(1) of the Family Law Act 1975 (Cth) (the Act).
How is separation defined?
Section 49 of the Act sets out the meaning of separation, which is defined as follows:
(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 one only of the parties.
(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.
As noted in s 49(1), separation can be instigated by one party, and a marriage can be shown to have come to an end if the usual factors which signify a loving marriage, such as: financial interdependence; sexual relations between the parties; and a recognition that there exists a relationship both in private and in public, are no longer features of the relationship then it can be shown that a marriage has broken down.
Intent, and acting on the intent is essential when demonstrating separation
At least one of the parties must hold the intention to end the marriage and act on that intent. In Jennings and Jennings (1997) FLC 92-773, the parties had resided with one another from 1975, until the husband was hospitalised due to dementia and severe paranoia in 1994. The wife continued to visit her husband regularly and acted in a manner that a normal wife would. The court found that separation had not occurred as there was no evidence that showed either party holding the intent to separate from one another.
Generally speaking, if one of the parties does hold the intention to end the marriage, it must be communicated to the other party directly or indirectly, either verbally, or through their conduct (per In the Marriage of Falk (1977) 29 FLR 463).
What if the marriage has come to an end, yet the parties are still living together?
Couples can still be seen to have separated even if they continue to reside under one roof. Section 49(2) of the Act provides that 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.
Additionally, there is no requirement that all of the factors that demonstrate a marital relationship (financial interdependence etc) has broken down in order for separation to occur i every instance.