date of legal separation

The date of separation is the date that one, or both, of the parties to the marriage decided that the marriage was over and is often characterised by one party leaving the former matrimonial home. However, it is important to note that parties can be separated whilst still living under one roof.

There are several reasons why the ‘date of separation’ is significant, namely: 

  1. In order to be eligible to apply for a divorce in Australia, the parties must have been separated for at least 12 months;
  2. For couples who wish to reach a final property settlement with their separated spouse:

a. Married couples have 12 months after the date of divorce to apply for a property settlement without having to seek leave of the Court;
b. For de facto couples, they must apply for a property settlement within two (2) years of the date of separation. 

A disagreement may arise about the date of separation where couples continue to live together after the marriage has broken down. It is not a requirement for divorce that the parties must be living separately for separation to take effect, but rather separation occurs when the parties stop living together as a couple. Where the parties continue to live together after they are separated is called ‘separation under one roof’. 

When determining whether two parties are living together as a couple, several factors are taken into account: 

  1. Have the parties notified their friends and family that they have separated? 
  2. Have the parties notified Centrelink, Child Support or other relevant government agencies that they have separated? 
  3. Are the parties sharing a bedroom? 
  4. Is there an ongoing sexual relationship between the parties? 
  5. Have the parties separated their finances? 
  6. Do the parties share meals together?
  7. Do the parties attend functions together as a couple?
  8. Do the parties do their own grocery shopping? 

In order to avoid a dispute down the track as to when the separation took place, consider taking the following steps: 

  1. Tell your friends and family that you and your partner/spouse separated on a certain date; 
  2. Inform the relevant government agencies that you and your partner/spouse have separated; and 
  3. Inform your partner/spouse that you have separated and indicate the date if possible. 

If you have recently separated, speak to one of our dedicated family law professionals who can work with you to understand your needs and circumstances, and devise a clear plan of action.

Fill out the form below to contact our family law team or phone us today on 02 9964 0499 to arrange a no-obligation consultation. 

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