The significance of separation

The concept of separation is enormously important in family law matters. The court's jurisdiction to make orders in respect of children, or by way of adjustment of property rights, is normally triggered when the parties separate, not when a divorce order is made or becomes final.

In respect to both de facto relationships and marriage, clarity as to the separation date is essential namely:

• • Applications for Divorce may not be filed until 12 months after the date of separation. See Separation for 12 months prior to filing;
• • Applications for de facto financial matters, which must be filed within two years of the date of separation: See De facto relationships under the Family Law Act and De facto law — State based;
• • Applications for financial orders for de facto parties, may not be filed where the parties have not actually ended their relationship. See De facto relationships under the Family Law Act and De facto law — State based.

In other cases, the date of separation can be an important consideration for the court in determining the appropriate approach to be taken. Those cases include:

• • applications for property settlement involving assets acquired after separation;
• • applications for property settlement in terms of the assessment of contributions post-separation; and
• • care arrangements for children after separation.

In all cases, the separation date is important for the parties as it marks the psychological end to the marriage or relationship and is almost always a time of significant stress and anxiety. In families where there is or has been family violence, separation marks a time when the affected family member (statistically speaking predominantly the female spouse) is at a significantly increased risk of violence from the perpetrator spouse. Where possible, practitioners should ensure that clients are appropriately advised about safe ways (physically and emotionally) to communicate a wish to separate to their spouse.

What does separation mean?

Separation essentially means the breakdown of the marital or de facto relationship to the extent that one or both of the parties intends to permanently sever that relationship. Physical separation alone is neither sufficient nor necessary to establish separation, and the court will have regard several factors in determining when, or if, separation has, in fact, occurred. These include: whether there was a conscious intention and action to separate, and whether that intention was either directly or indirectly communicated to the other party.

Frequently parties will have separated but continue to live in the same house and may share some household services because they may wish to reduce the impact on their children or because they are unable to afford to live in alternate accommodation. In such cases, the parties will need to provide additional supporting affidavits to the court to verify that an actual separation has occurred before a divorce may be granted. See Separation under one roof.

See The meaning of separation.

Resumption of cohabitation

Insubstantial periods of cohabitation are treated as being periods of less than three months and the court may find they have not reduced the period of separation. Generally however, the court will aggregate the periods of living separately and apart in order to determine that the 12 month requirement is met before making a divorce order.