When does separation occur at law?

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It may seem like the answer to this question is an obvious one. However when it comes to putting an end to a long term relationship, the date of separation can often be unclear.

When the date of separation varies by only days or weeks it will usually have no impact to any family law proceedings brought by a party. There are however limitations that will prevent you from binging a family law proceeding, when you have been separated for too long.

When is a couple legally separated?

Separation in the context of Family Law is when either the married or de facto partnership breaks down. Often clients will look at one of the following factors when determining the date of separation of their relationship:

  • When they stopped living under the same roof
  • The date that one party left
  • When the parties stopped sleeping together
  • The date of a big argument
  • The date that one party found out about an affair

All of these factors can play a part in a couples decision to separate. The court will look at one key factor when determining the date of separation. This is the date of communication of the separation.

Both parties can communicated to each other that the relationship has come to an end by agreeing. Or one party can communicate to the other that the relationship has irretrievably broken down and that the relationship is now separated.
For further information on how to separate, click the link, to read our article: How to separate from my partner?

Why is the date of separation significant?

For de-facto couples there is a 2 year time limit from the date of separation to bring property proceedings . You may apply for leave to lodge your case out of time, however other criteria need to be satisfied before it is granted. So questions about the exact date of separation can arise.
For married couples who are seeking a divorce they need to wait 12 months from the date of separation. The time limit for formerly married couples to bring family law property proceedings is 12 months from the date of divorce.

The date of separation can also become if importance in family law proceedings when looking at:

  • When significant gifts were received?
  • How the children will be cared for once separated?
  • The duration of the relationship generally

Can both parties be separated and live under one roof?

There is no legal obligation that requires a party to leave the home on separation. Parties will often remain under the same roof for some period post separation. This can be to care for the children or to await a final property settlement

What happens if we get back together for a period of time?

Parties who are looking to rely on a separation date for the purposes of filing for divorce can reconcile for not more than 3 months and still rely on the original date of separation. This is providing that when applying for divorce that the total length of time separated is 12 months or more. If there is a period of reconciliation of over 3 months then the date of separation will reset.