When a relationship ends, whether it’s a marriage or a de-facto relationship, the first step usually involves one person deciding they want the relationship to end. This is often the beginning of a long process and some formal steps should be taken even at this early stage. The exact date of the end of a relationship can have significant effect on the date you can become divorced, and how certain late-stage financial contributions, or expenses are treated.
Many couples will have a trial separation where they try to work through their problems whilst others have already decided the relationship is over and simply need to communicate that to the other person. It doesn’t matter what the reason, and it doesn’t matter who is or is not at fault, the law acts in the same way.
The first steps: document what’s happening, and know the law.
The first step we recommend is to formally document the end of the relationship, preferably in writing such as by letter, text message or email to the other party. Remember to keep a copy. If there are reasons why this is not practical, document those reasons and the situation as you see it. If you engage us at this early stage, you can send us emails that record each step you take. Our incoming emails automatically have a date stamp. Alternatively you can arrange to write out a statement and have this record formally witnessed, such as by a JP – noting that a JP only witnesses your signature and does not read the document.
The reason this step is important is that separations in Australia are not formally registered and can therefore be disputed – so the more evidence you collect and retain the better. If you move out of your shared home then documents such as bills and leases showing your new address, are all potential evidence. Even text messages can be saved and used in evidence – but remember that works both ways before you get overly hostile in your messaging!
Because a lot of issues turn on timing, such as when you can file for divorce (a 12 month separation is required before signing and then filing your application), and whether there is an eligibility for a property settlement (a de-facto relationship must generally have been for 2 years or longer and proceedings cannot generally be commenced* more than 2 years after separation), keeping records is a critical matter. We acted recently in a case where a party received a gambling windfall after separation, however the date of separation was disputed. The other party claimed the windfall was a result of family money spent during the relationship. The date of separation can therefore be critical. The same applies to spending on a credit card: Would you like to be liable for your spouse’s unapproved spending on a joint credit card after an informal separation?
We recommend you talk to us so as soon as possible to make sure you get the best advice, and take the right steps, to minimise some of these risks, as exceptions can apply*.
A lot people don’t know that you can be separated but still live in the same house. This is called “separation under one roof”. To be able to claim this, there are some steps you need to take, and you must be able to prove them. Continuing as usual but just refraining from sexual relations is not enough. Some of the things taken into account when determining the time a separation was in effect in the same property are whether you slept in separate rooms, whether you cooked and washed for each other, whether your financial affairs are separated, whether you continue with a sexual relationship, and whether or not you went public with the separation. Sometimes, in the particular circumstances of each case, a mix of these factors will result in a finding of separation under one roof.
Again, these are critical matters and they need to be documented, ideally but not necessarily with both parties agreeing to the arrangements. We recommend you talk to us as soon as possible to make sure you get the best advice.
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