When it comes to ending your marriage or de facto relationship, the moment that “it’s over” may seem clear cut to you–or even be burned into your mind. But is proving separation so clear to the courts? Here’s what the courts will look at in determining if and when a couple is officially separated, and what evidence you should try to gather to make proving separation easier.
The date that you and your spouse separated is important in family law. For married couples, to get divorced, it’s necessary to show that you’ve been separated for at least 12 months. The date of separation is also important in financial matters. For de facto couples, the separation date is particularly important because there’s a period of 2 years after separation during which a claim can be made in the family courts for a property settlement.
While separation itself might not be a formal process, you might at some point need to prove your date of separation. Sometimes, there can be issues if you and your spouse don’t agree on the date of separation, so it’s important to know how you would show a court that separation occurred and when.
How is separation proven?
There is no formula for working out if a couple has achieved “separation” status. In family law, every matter is considered on a case-by-case basis depending on the unique circumstances. The courts will look at a wide range of factors to establish a change in the overall character of the relationship. There will typically be natural indicators of “before” and “after” a separation. The following is not an exhaustive list, nor is every factor going to be relevant to all situations, but they are some of the typical aspects that the courts will look at to draw a conclusion.
Factors considered for proving separation
The factors that a court may consider when determining if a couple has separated include changes to financial aspects of the relationship, changes to the nature of the household, changes to social aspects of the relationship and changes to the couple’s commitment to each other.
- Changes to financial aspects
This involves looking at whether and when the parties separated their finances. This might include closing joint bank accounts, opening separate bank accounts, changes to allocation of responsibility for payment of expenses or liabilities, renegotiation of shared loans, changes to beneficiaries for life insurance, superannuation, wills and other legal arrangements.
- Changes to the nature of the household
Do the parties still live together? This may be obvious if one party has moved out of the shared home. But a partner’s absence from the home is not always conclusive, for example if they were often travelling for work purposes. Further, couples can be separated but still remain living under the one roof (more on that below). As such, the courts will also look at what household changes there have been, including in the performance of household duties (eg. no longer cooking meals for each other, starting to shop independently for groceries, etc), any changes to sleeping arrangements (eg separate bedrooms), any changes to childcare arrangements, and changes to shared telephone numbers or email addresses.
- Changes to the sexual relationship
This can play a part in convincing a court that a couple has genuinely separated. However, note that the presence or absence of sexual relations alone is not conclusive evidence.
- Changes to social aspects of the relationship
Whether and when family and friends were been told about the separation, any changes to attending shared social activities or family get-togethers, whether you are invited to events as a couple or individually, not spending time together on special occasions, whether there’s the existence of any sexual or romantic relationship with another person outside the relationship.
- Changes to the nature of the parties’ commitment
This might include whether intimacy, support and companionship been withdrawn. Do the parties have any joint plans for the future? The courts will examine how the parties communicate and share information with one another, and whether they would provide assistance if the other was ill or in need of help. All such aspects can be revealing to the court as to whether a couple has actually separated and is no longer living as a husband and wife.
Do you have to agree to separate?
No. There’s no requirement for the decision to separate to be a mutual one. But importantly, one party has to convey that wish to separate to the other party, words or actions that clearly demonstrate the desire to end the marriage.
Separation under the one roof
When a couple separates but stays living together in the same house it is known as “separation under the one roof”. Many couples opt for this as a temporary solution after deciding to separate, for reasons of convenience, finances or to maintain a stable environment for the kids. You can continue to live in the same home and still be regarded as separated.
Make sure you keep a list of key dates of your relationship, including when you started living together, the date of marriage, the date of separation and any other dates that may be relevant. Also keep evidence that can confirm any important dates: for instance, if you moved out, it might be removalist receipts, the date of a new lease, dated new household bills and so on.
If you need any assistance with your separation or divorce, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.