What Constitutes a Separation?
Frequently we will have clients come in to seek advice in relation to family law matters and one of the first questions we ask is “when did you separate?”
On numerous occasions we receive a response from a client saying, “I’m not sure” or “I don’t know if we are”.
Determining when parties separated (and if they have) can be vitally important to determine property and parenting matters at a later date and therefore we put a strong onus in family law matters upon the date on which the parties determined that the relationship had broken down.
In Australia, the Family Court recognises that no relationship operates in the same way and therefore there is no strict definition of the term “separation” in the Family Law Act. There are however several factors that can go towards determining if a relationship has ended (and when it ended), for example:
1. Has one party indicated to another that the relationship has ended;
2. Have the parties lived separately;
3. Do one or both of the parties consider themselves separated;
4. Do other people see the parties as being separated;
5. Do the parties act as though they are separated.
Being “separated” does not mean that the parties need to reside in separate homes and have changed their status to “it’s complicated” or “single” on Facebook. Most commonly in long term relationships, the parties will live separately and apart but within the same household for a period of time until other accommodation can be organised. In those cases, the court has looked to several considerations to determine if the parties are in fact separated, including:
(a) Are the parties sleeping together in the same bed or room;
(b) Are the parties having sex;
(c) Are the parties presenting themselves in public as a couple (are they attending birthday parties together, entertaining friends together, eating meals together etc);
(d) Have they told any of their family and friends that their relationship is over;
(e) Are they jointly caring for any children;
(f) Are they continuing to maintain joint finances;
(g) Are they still supporting and protecting one another.
Ultimately, it is up to the party claiming separation has occurred to provide evidence to the court to back up their claim.
If the parties are still exhibiting any of the above factors then it is unlikely that a court will determine that they have separated.
Things to Note
If you are considering separation, or wish to confirm separation has occurred, consider the following:
1. Consider how you lived together before separation, including what activities you would undertake together and how you managed the various household or parenting obligations.
2. Consider the obligations and responsibilities you have now, for example, before separation you may have sat down together for a meal and now you have meals at different times or before you separated you may have ironed your partner’s shirts but now you each individually take care of your own laundry.
Having this information on hand can assist your family lawyer in providing you the right advice in relation to your circumstances and likely outcomes.
If you need assistance in a separation or divorce please refer to our Family Law page or contact our experienced Family Lawyer: