When does separation actually occur for family law purposes?

The date on which a marriage or de facto relationship ends is one of the most significant and often misunderstood dates in a family law matter.

Separation refers to the effective breakdown of a relationship and occurs when one or both parties:

1. Form an intention to permanently end their relationship;

2. Act on that intention; and

3. Communicate that intention to the other party, either verbally or by conduct.

It generally requires more than just physical separation and may occur under one roof, with the circumstances of the parties before and after the purported date of separation to be compared to determine whether separation has in fact occurred.

The factors to be considered when determining whether separation has occurred are not fixed but generally include:

1. nature and extent of cohabitation;

2. household and financial arrangements;

3. existence of a sexual relationship;

4. the manner in which the parties socialise and interact as a couple;

5. recognition of the separation both privately and publicly.

The date of separation may be a critical date in a family law matter. For married couples, it commences the period after which they may divorce. For de facto couples, separation is generally what enables the Court to deal with financial matters and commences the 2 year limitation period within which they must make an application to the Court for most financial matters.

Accordingly, clarifying the date of separation early is an important milestone and may inform various other strategic considerations throughout the course of a family law matter.

If you require assistance with determining when you separated and what comes next or any other aspect of your family law matter, please contact us today on (08) 6313 9070 to arrange an initial consultation.

This is general information and not intended as legal advice.