Separation in Family Law
If your marriage has broken down irretrievably and you wish to apply for divorce from your partner, the legal requirement under the Family Law Act 1975 (Cth) is that the parties have been separated for at least 12 months. However, it is not always possible to live separately from your former spouse – there may be financial constraints that limit your ability to move to a new place, or you may wish to continue residing together for the sake of any children involved.
What happens if I cannot move away?
Thankfully, the law accepts that living apart during separation is not always possible. In the case of Pavey v Pavey, it was established that separation means more than mere physical distance – it is rather based upon the complete and irreparable breakdown of the relationship. Thus, the Family Law Act states that a couple that has separated may still reside under one roof, provided that they are not cohabiting. The parties would need to demonstrate that their relationship has been severed, or that they no longer recognise themselves as being in a relationship (Falk v Falk). If the Court believes that cohabitation is likely to resume, a divorce order will not be granted. Thus, the parties will need to provide evidence that corroborates the fact that they are living separately under one roof.
What does cohabitation involve?
In this sense, cohabitation means that the parties are living together as a couple and having a sexual relationship without being married. Fortunately, cohabitation does not extend to the provision of household services for one another. This means that parties that are separated and living under one roof may assist each other with domestic tasks such as cooking, cleaning and other household jobs.
What if we attempt to reconcile?
The Family Law Act encourages parties to attempt to reconcile their differences. If the parties later attempt to reconcile and are unsuccessful, the law takes this attempt into account when calculating the 12-month separation period. However, the period in which cohabitation was resumed must not have been for more than three months. If the period of cohabitation was less than three months, then the periods of separation before and after the resumption of cohabitation may be aggregated to make up the 12-month period. If, however, the period of cohabitation is more than three months, then if the parties choose to separate again they will need to recommence their 12 month separation period from this date.
Generally, an attempt to reconcile the relationship includes both parties agreeing to setting up a matrimonial home and resuming the relationship (Mummery v Mummery). The case of Batty v Batty also looked at other factors that would suggest the marriage has been resumed, including the public and private recognition of each other as spouses, whether there is a sexual relationship, joint care of children and economic collaboration and sharing of funds.
How do we prove that we have separated?
If you have separated and are living under one roof, you will need to provide evidence to show that the relationship has broken down and will not be resumed. This is done by submitting an affidavit detailing the extent of your relationship since separation, including details such as:
- the date of separation and the circumstances surrounding it;
- an explanation of why you are still living under one roof;
- whether you informed anyone of the separation;
- whether you have moved to a different room in the house;
- whether household tasks are completed collaboratively, or each person does their own; and
- whether you speak to or interact with one another.
If you are going through a separation and would like to receive legal advice on your rights and obligation, please reach out to one of our experienced family lawyers. We will be able to help you through this difficult time.