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Separation

What is Separation?

‘Separation’ is not defined in the Family Law Act – it is simply a state of fact that exists where one (or both) parties no longer consider themselves to be in a partnership and there is no reasonable prospect of reconciliation.

You do not have to be living apart to be separated in the eyes of the law. You could be legally separated but still living ‘under the one roof’, as long as the conditions for separation have occurred.

The Court will require affidavit evidence to verify that you have been separated under the one roof in order to get a divorce. The Court will look to evidence of the end of the relationship and consider domestic arrangements – for example, who does the shopping, cooking, washing and cleaning. You may have an ongoing financial relationship and still be separated by law.

Every case is different in Family Law. No two situations are the same.

There is a ‘kiss and make up’ provision in the Family Law Act that allows a separated couple to get back together for up to three months to try and make the relationship work without affecting the date of their original separation.

Effectively, the 12-month separation period is suspended during the ‘kiss and make up’ period. This can occur only once in any 12-month period. For example:

  • 1 April 2010 – separation under the one roof.
  • 1 July 2010 – ‘kiss and make up’ attempt begun.
  • 1 September 2010 – ‘kiss and make up’ fails.

To qualify for a divorce, the separation would normally have been completed in April 2011 but the two months of ‘kiss and make up’, which failed, extends the 12 months’ separation period to 1 June 2011. If you try to reunite more than once, the date of commencement of separation restarts

Before separating

Whether yours is a marriage or a de facto relationship, once you have made the decision to separate – but before you actually do – you should plan your course of action.

Naturally, you will need to work out where you will go and when … and with whom and what. You might consider questions such as:

  • Will you take the children?
  • What about the pets?
  • Do you fear a violent response?
  • Can you take the company car?
  • Does your departure create any legal implications?

It is important to get proper advice on these issues before you go, because your decisions may have unforeseen consequences that could cause problems for you in the future. If you are uncertain, seek assistance or support from one of several government agencies, counselling services or groups who can provide help. Most are either free or are reasonably priced and cost effective.

When relationships are doing it tough, there is usually a lot of support and advice from the sidelines. Family and friends are there to help and often feel they are competent to advise you on what to do (or what not to do). However, the experiences of your sister-in-law, who was left by her husband five years ago and who had to fight tooth and nail to gain custody of the children, may not be relevant to your situation. The fact that your best friend got 65 per cent of the property distribution does not mean that you will.

It is important that everyone going through the trials of a split or divorce seeks independent professional advice, at least about:

  • Family Law as it applies to your specific circumstances
  • the legal processes you may have to go through
  • your options and which course of action might be appropriate, and
  • the costs and expenses involved.

Once you have separated

Under Family Law, once you have separated, you can make arrangements for the distribution of your property and the living and time-sharing arrangements for your children. You don’t have to wait around for the 12-month separation period to get matters resolved; 12 months of separation is simply the qualifying period for a divorce.

Property and children’s arrangements may be finalised by coming to a settlement with your ex, or you can make an application to a court

Some guiding principles:

  • You do not have to have a disagreement with your ex-partner over what is going to happen with the children.
  • You do not have to engage in a legal battle over the assets (or what will be left of them after you pay the legal expenses).
  • You do not have to go to court.

Find out where you stand and get some legal advice on your options and the best way to move forward. Contact us today.

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