Team member Donna Nguyen.

Donna Nguyen - Family Lawyer

Donna is a family law solicitor admitted in the Supreme Court of New South Wales with a double degree in Business and Law. Donna is drawn to family law as…
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What is marriage separation before divorce?

In Australia, the only requirement for the divorce is that the marriage must have irretrievably broken down. One or both spouses must prove this by demonstrating to a court that they have been separated for at least 12 months before making the divorce application and that there’s no chance of getting back together.        

Marriage separation means that the spouses are no longer living together as a married couple

What are the legal requirements for the marriage separation process?

There aren’t any formal legal requirements for marriage separation: no forms to fill out, no affidavits to swear, no asking for court orders. Even so, sometimes separation is referred to as marriage separation or legal separation. These terms all mean the same thing.

Separation is an informal process.

But you need to remember that at some point it may become necessary to prove the date of your marriage separation, especially if you know from the outset that you’ll probably be getting a divorce.

This can become an issue when making a divorce application if you and your spouse can’t agree on the date of separation.        

It’s important to try and do everything possible to establish that separation has happened on a particular date, including:

  • One party moving out of the home
  • Confirming the separation to your spouse in writing (for example by letter, email or even text message. Make sure you keep a copy of the communication)
  • Allocating responsibility for bills and financial obligations. For example, you may take on responsibility for utility payments because you’re staying in the house. Your spouse may take over car loan repayments because they’re keeping the car
  • Making arrangements for your children. For example, how they will divide their time and who has responsibility for what expenses

If you and your spouse agree on the date of separation, you may both be able to sign a simple document that declares the date on which you formally separated. It’s a good idea for you both to keep a copy of the document. You’ll need to keep it safe because when you make a <divorce application>, it may help to prove separation for at least 12 months. This is sometimes known as a separation agreement.

A separation agreement can also include other information about allocation of responsibilities during the separation. If you’d like to consider making a separation agreement, get in touch with us for further advice.

Marriage Separation Process

Can there be a marriage separation if I haven’t told my spouse?

It is always best to clearly communicate to your partner/spouse that you wish to separate. However, even if you haven’t told your spouse that you wish to separate, there can still be a separation. In some marriages, this may be obvious if one spouse moves out of the marital home. In others, it may not be as clear-cut; for example, one party spends time away, travelling for work.

It becomes a case of actions speaking louder than words. You need to make it clear that you’re separating. For example, moving out, or taking over responsibility for some (or all) of the expenses.

What does it mean to separate under one roof?

Sometimes, a married couple may wish to separate, but circumstances prevent them from living apart. There could be many reasons, including:

  • Lack of money to run two households
  • Providing more stability for the children
  • It suits them to live together, even though they no longer wish to live as a married couple

Where a couple has separated but remains living in the same home, this is known as separation under one roof. If you’re in this situation, it’s still possible to separate and to prove to a court that you’ve separated for the necessary time. In these circumstances, evidence becomes even more critical.

You need to gather evidence right from the start, which may include:

  • You and your spouse signing a document that sets out the date of separation
  • Moving into separate bedrooms
  • Allocating responsibility for certain things, for example, rent or mortgage payments
  • Making arrangements for the care of your children
  • Establishing separate bank account
  • Telling family and friends about your separation, including the date of separation

What happens if we get back together?

If you and your spouse reconcile for longer than three months, your marriage separation period will cease. If you separate again, you’ll have to start the separation process from the beginning, meaning that you’ll need to separate for at least 12 months before applying for a divorce.

If you reconcile but then separate again in a period that’s less than three months, the marriage separation clock stops and then starts again. Let’s say you’ve been separated for six months, reconcile for two months and then separate again. You’d have to separate for a further six months before applying for divorce.  

The dates of any reconciliations and further separations may become important. You’ll need to keep them recorded somewhere. You’ll also need to keep a record of any evidence that proves the dates; for example, removalist receipts, household bills and evidence from family and friends.

If you have any questions about separation and reconciliation, we’ll be happy to answer them.

What about kids?

Arrangements for children can be especially tricky. Separations are often already emotionally charged situations. Children’s confusion and distress can often make things even more challenging.

It’s worth remembering that any arrangements made during separation aren’t permanent. Keep in mind the best interests of your kids and how to meet their needs, including who will pay for what.

It can be a good idea to start family counselling right away to work through these issues and to try to provide as much stability as possible. Your kids may also need counselling to help them cope with the separation.

We can help you make the decisions that are best for your kids and you. Have a chat with one of our family lawyers to find out more.

What else needs to happen?

As part of the marriage separation process, it’s wise to take care of a few other things. We recommend that you:

  • Keep a list of key dates, including:
    • When you moved in together
    • The date of marriage
    • The date of separation
    • Any other dates that may be relevant
  • Keep important documents in a safe place, including:
    • Your marriage certificate
    • Your birth certificate
    • Your children’s birth certificates
    • Certificates of Title for any real estate owned by you and your spouse
    • financial documents such as bank statements, tax returns, superannuation statements, rent receipts, bill payment receipts, invoices and receipts for any other expenses
  • Have a clear understanding of your financial position at the date of separation, including:
    • The value of your assets
    • The amount of equity you have in your assets
    • Bank balances
    • Mortgage liabilities
    • Credit card debt
    • Superannuation account balances
    • Anything else that demonstrates the financial situation at the time of separation

There’s no legal requirement to collect this information, but having it can make the divorce application process much smoother. If you’re not sure whether your separation is leading to a divorce or whether it’s just a trial separation, it’s a good idea to tick these items off your list, just in case.

The sooner you get expert family law advice, the better off you’ll be. Good legal advice from the beginning helps to reduce costs, secure a settlement that meets your needs, reduces conflict and speeds up the divorce process.

For some more free information, we recommend going to the Family Court of Australia website.

Contact us as soon as possible

Whether you think you’re about to separate or you’ve already separated, we’ll help you sort things out.

Team member Donna Nguyen.

Donna Nguyen - Family Lawyer

Donna is a family law solicitor admitted in the Supreme Court of New South Wales with a double degree in Business and Law. Donna is drawn to family law as she is interested in helping clients during a difficult and transitional period following separation. She strives to achieve the best outcome for her clients and has their best interest at the forefront of her advice.

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