The Legal Implications of Partner Separation

When a relationship breaks down, there are significant legal implications to consider. The legal consequences of a partner separation differ from divorce to de facto relationships, and are impacted by your living circumstances.

What is the Definition of ‘Separation’?

‘Separation’ in family law is defined as the bringing to an end of a marriage or de facto relationship. There is no requirement to register a relationship separation under Australian law. However, separation is a fact which must be proven if it is disputed by one party in legal proceedings.

In the case of a divorce, the date of separation is recorded on the application for divorce and is sworn or affirmed to be true and correct by the applicant. If you cannot prove that you have separated from your spouse for at least 12 months or if your spouse disputes this,  the Federal Circuit and Family Court of Australia (the “Court”) will not grant the divorce.

Therefore, it is a good idea to confirm the separation in writing, even if this is via text message or email that can be saved. Often divorce cases and cases for property settlement in de facto relationships can turn upon whether or not a party can prove that separation occurred on a particular date.

Legal Separation and De Facto Relationships

In the case of a de facto relationship, whether or not a property settlement is available can depend on whether the relationship was for a period of at least two years or if the person applying to the Court has made substantial contributions and failure to make an order would result in serious injustice.

In addition, there is also a two-year limitation period in which to commence the application, from the time of separation. In such cases, again, the date of separation in evidence can be significant.

Living together after Separation

Separation can take place even if the parties still live in the same property (Karen pls hyperlink this: https://etheringtons.com.au/separated-under-one-roof/). In these cases, the Court will need to examine a number of factors to determine when and if a separation has taken place.

The factors that determine separation can include whether the parties:

• Slept in separate rooms or together after the alleged date of separation
• Performed domestic duties such as cooking and washing for each other after the alleged date of separation
• Separated their financial affairs to any extent after the date of separation
• Lodged or signed any documents informing government agencies of the separation, such as applications for Centrelink or ATO documents as a single person, as opposed to a person in a relationship
• Continued to be intimate after the date of alleged separation
• Made it publicly known (such as by telling friends and family), that they had separated

10 Things to Consider When Ending a Marriage or De Facto Relationship

1. Contact your bank or financial institution in writing (in person or email- with your signature appearing) to separate or freeze joint funds.
2. If your ex-partner has your power of attorney, ensure it is revoked, and have a new one drafted.
3. Consider whether your nominated death beneficiary for your superannuation entitlements is appropriate.
4. Photocopy all of your and your ex’s financial documents and put them in a secure location (this should not be at your home or in your motor vehicle).
5. Review your Will and consider updating it if necessary.
6. If you have children, contact the Child Support Agency and find out how much is to be receivable or payable for child support and what impact that will have on any pension.
7. Do title searches on your home if it is not in your name or if it is in joint names and consider lodging a caveat over the property. If your property is held as a joint tenant, consider severing the joint tenancy.
8. If there has been family violence in the relationship, you may need to seek an Apprehended Domestic Violence Order (ADVO).
9. Start a diary which keeps track of time your partner has with the children and any adverse behaviour they display.
10. Seek advice from an experienced family lawyer.

Contact Us

As you can see, there are many legal considerations that arise following a relationship breakdown. If you would like to discuss your unique circumstances with a highly experienced and strategic family lawyer, please contact Etheringtons Family Lawyers in North Sydney on (02) 9963 9800 or via our form here.