Separation vs Divorce

It can be very confusing and so this article will provide you with a clearer understanding of how these terms are used, and their relevance when your relationship breaks down. 

What does it mean to be separated?

In the context of leaving your spouse, a separation is the point in time which you are considered to no longer be in a relationship. It is effectively the ‘termination’ of an intimate relationship. It can be the case that only one of you wishes to separate, with this being conveyed to the other person. There is usually a mutual understanding that a separation has occurred, but a mutual understanding is not essential for separation to have occurred.

You can be separated from your spouse but still be living under the same roof.  This is not an uncommon situation. The factors that are relevant to being separated whilst living together are:

1. Whether you are sleeping in separate beds,
2. The sharing of household duties ceasing i.e., doing your own laundry and cooking etc,
3. Not attending family outings together or appearing as a couple to your friends,
4. Separating your finances, and
5. Telling your friends and/or family that you are no longer in a relationship.

You do not need to be doing all the above but aligning to these situations can indicate a separation.

What does separation mean if you want to get divorced?

If you have been married and are ending a relationship you will need to pursue a divorce. Divorce is the process that legally ends a marriage.

The notion of separation is important if you want to get divorced. You must establish to the Court that your marriage has irretrievably broken down and, to establish this, you must be able to prove to the Court that you have been separated for a period of at least twelve (12) months.

You may still be living under the same roof but must prove that for the duration of twelve (12) months prior to pursuing a divorce, you have not been living with your spouse as a couple. You will have to provide the Court with additional material to establish that you were living together but separated. This is done through an affidavit by you and/or your spouse providing evidence of the separation whilst living together i.e., separate beds, separating household tasks, separating finances, etc.

If you have been married for less than two (2) years but wish to get divorced, you will be required to show that you attended counselling prior to applying for a divorce. A counselling certificate is sufficient for the Court. If it is not appropriate for you to attend counselling (particularly if there are issues of family violence) you can provide the Court with an affidavit explaining why counselling is not appropriate and obtain an exemption to this requirement.

The Divorce Order is made at the hearing but comes into effect one month and one day after that hearing.

It is important to know that a Divorce Order does not formalise any arrangements with respect to your property or parenting matters. These are separate and involve a different process.

If you require assistance on the issue of separation or divorce, please do not hesitate to contact us so we can assist. We offer a fixed fee Smart Start Appointment which is a useful way to understand your Family Law rights and the steps in resolving any issues.