Last updated 27 April 2022
Separation involves two things:
- an intention to separate (by one party or both)
- acting upon that intention.
It may be the case that parties live thousands of kilometres apart but are not separated. On the other hand, parties may be living under the same roof and yet be separated.
Apart from the requirements that a party forms an intention to separate, acts upon it and advises the other party of that intention, there are no further requirements for a legal separation to take place.
Separation under one roof
It is possible for a couple to have lived separate and apart for 12 months even though they still live under the same roof or rendered some household service to the other (s 49(2) Family Law Act 1975 (Cth) (Family Law Act)). The court will examine such a claim very carefully.
When the parties have continued to share the same household during the separation, the court will generally require corroborative (supporting) evidence from a third party (e.g. a relative or friend) verifying that separation has actually occurred.
In assessing whether parties have separated, the court will look to see whether all or some of the following features of a marriage relationship are absent:
- sexual intercourse between the parties
- sharing social activities as a married couple both publicly and privately
- sharing of household chores and day-to-day functions.
Commencement of separation
The 12-month period of separation begins the day the parties separate. One party may unilaterally decide that a marriage relationship has ended. The party who initiates a separation is not required to inform the other that the marriage has ended. However, a common dispute in divorce proceedings is about when separation actually took place. This can be avoided if the party seeking the separation informs their spouse of this in writing at the time to ensure that there is no confusion or disagreement about the date of separation later on.
A period of separation does not automatically begin due to some event (e.g. imprisonment, illness or the work transfer of one of the parties). The parties do not legally separate whilst a marriage relationship is maintained. In such circumstances, it remains necessary for one party to form the intention to separate and act upon that intention for separation to occur.
Rights during the separation period
Parents are jointly responsible for the care, welfare and development of their children, unless there is a court determination to the contrary.
Either party may seek an order about the children during the separation period, as well as applying to the Child Support Agency for child support. A person who is unable to support themselves during the period of separation is entitled to apply to the Federal Circuit and Family Court of Australia or a local Magistrates Court for spousal maintenance.
Children’s issues, maintenance and property are dealt with in chapters Post-separation Parenting, Spousal and Child Maintenance and Child Support, and Property Division When Couples Separate. A property settlement can take place at any time after separation. An application to the court for property settlement or spousal maintenance must be made within 12 months of the divorce order being made by the court or, if the parties are a de facto couple, within two years of the date of separation. Special leave must be sought from the court to bring an application out of time. An application in relation to children can be made at any time during separation or after the divorce of the parties. Multiple applications in relation to children are not encouraged, and if there are existing orders, any subsequent application will need to be based on a significant change in circumstances (Rice & Asplund (1979) FLC 90–725).