In the context of family law in Australia, the date of separation is when a married or de facto couple ends their relationship. While this can be hard to pinpoint, it is a crucial benchmark in a property settlement and divorce proceeding timeline.
Why does the date of separation matter?
The date of separation is crucial for several reasons:
- A married couple must be separated for at least 12 months before applying for a divorce.
- The date of separation is important in determining the value of assets and liabilities within the property pool, particularly in relation to debts and assets acquired after separation.
- De facto couples must commence property settlement proceedings within 2 years of the date of separation (while married couples must commence proceedings within 12 months of the divorce being finalised).
What constitutes a separation
For many couples, the date of their separation is a clear memory. For other couples, separation is a long and drawn-out process, with multiple attempts at reconciliation. It is often easiest for a former couple to use the date when one party finally moves out of a shared residence and does not return as the date of the separation.
However, this approach is not always appropriate. For instance, one period of reconciliation does not restart the clock on the period of separation. Under section 50 of the Family Law Act, a couple can reconcile for up to three months before restarting the clock on the separation period, as the initial period is added to the subsequent period. For instance, if a couple is separated for 10 months and then reconciles for one month, then they only need to separate for a further two months to be eligible to make an Application for Divorce.
In addition, some separated couples continue to live in the same residence. It is not uncommon for a separated couple to continue to live together, either for financial reasons, because they are waiting for the end of a lease or the sale of a property, or to stay close to their children. It is still possible to claim that the date of separation occurred while a former couple was separated but living under one roof. In such cases, the person claiming the date of separation may need to support their claim with affidavits from friends and family members. Such affidavits are written documents that confirm that the former couple were separated under the same roof, evidenced by factors such as changed sleeping arrangements, reduction of shared activities, and diversion of common interests.
Disagreement over date of separation
The date of separation may be a point of contention between the parties. When the separating couple cannot agree on the date, the court typically considers factors such as when they ended their sexual relationship, stopped sharing a bedroom, separated their finances, told their family and friends, and notified government agencies, such as Centrelink.
It is important to know that separation can be initiated by one party and does not need to be mutual. However, the other party must be aware that the separation has commenced.
Case studies
In Vallis & Estes [2020], the Federal Circuit and Family Court of Australia highlighted the difficulty of pinpointing a date of separation when there is disagreement between the parties. In that case, the husband asserted that the couple separated when the wife relocated overseas in May 2014. The wife claimed that they did not separate until October 2016. At particular issue were funds, totalling $34000, that the husband gave to the wife in 2015 and 2016. The husband argued that these amounts were loans, while the wife characterised them as gifts given within a marriage.
The parties agreed that between May 2014 and October 2016:
- they did not have a sexual relationship;
- the husband did not visit the wife or express an intention to do so (although he had travelled overseas during that time);
- she removed her personal belongings from his home;
- she changed her mailing address to her mother’s home; and
- her Pension Statement listed her as single.
The court found that, given all the evidence, the relationship did end in May 2014.
In Valance & Valance [2020] the court was forced to determine the date of separation for a marriage when there was conflicting evidence. The husband asserted that he and his wife separated in 2005, but remained living together for a further decade, while the wife claimed that the marriage only ended when she left the matrimonial home in 2015. The trial judge considered evidence from a friend of the husband who was with him when he received a text message from the wife ending the marriage, as well as the fact that the wife visited a family lawyer and gave the husband a partially complete Application for Divorce. The wife conceded these facts but claimed that the pair reconciled afterwards. The husband claimed that the wife moved out of their shared bedroom and lived a separate life from 2005 onwards, producing diary extracts from several years supporting this version of events. Conversely, the wife’s brother gave evidence that the pair shared a room when he visited their home and when they stayed with him. Each party had a child who was estranged from the other parent, who supported their version of events, with the judge deciding that their testimony was motivated by self-interest and should not be accepted. The judge particularly noted that, over the passage of time, the elements of a marriage are not fixed and can vary even within one marriage. Ultimately, the judge found that on the balance of probabilities, the parties did not separate until the wife left the matrimonial property in 2015.
It is important to be clear on the date of separation, as it can impact on several different family law matters, including time limitations, Applications for Divorce, and the overall amount of a property settlement. Please call Taylor Rose Lawyers on 1800 491 469 for advice on this or any other legal matter.
