Separation vs Divorce

The terms ‘separation’ and ‘divorce’ appear to be the same thing, but they have different meanings. They are each very important in your family law matter. For example, you can be separated, and not divorced. However, if you are divorced, you will have to be separated.  

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.

Is separation relevant to a de-facto relationship?

If you are not married but have been living with your spouse on a genuine domestic basis, you will be in a de-facto relationship. The concept of a divorce is not relevant to you. However, whether you are separated can still be very important.

One of the main factors in ending a relationship is sorting out the finances and dividing the property between you and your spouse. The law imposes a timeline on separating spouses to be able to resolve these property issues. You technically have a period of two (2) years from the date of your separation to commence Court proceedings about a property settlement and or spousal maintenance.

If you have separated for a period of longer than two (2) years but have not resolved your finances and/or property with your de-facto spouse, you will have to make an Application to the Court for an exemption to the time limit. The Court may allow an extension of time to file your Application if it would cause considerable hardship to a child of the relationship and if either of you is facing financial hardship and unable to support themselves without pursuing a property settlement.

There does not need to be any consideration of a divorce if you have been in a de-facto relationship.

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.

In other words, you are not able to apply for a divorce unless you can establish that you have been separated for 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.

How do you get divorced?

The process of getting divorced is governed by the Family Law Act 1975 (Cth) and takes place in the Federal Circuit and Family Court (Family Law) of Australia.

It is relatively simple and requires that you file an Application with the Court. The Application for Divorce can be filed jointly with your spouse or by you solely. The Court also imposes a filing fee, which can be reduced if you hold any government issued concessional cards. You will have to provide the Court with a certified copy of your marriage certificate (and you do not have to have been married in Australia).

If you file an Application solely, you must formally prove that your spouse has been personally served and you will have to provide evidence that you have done so. If your spouse is legally represented, you can arrange to ‘serve’ a copy of the Divorce Application on them. If they are not legally represented, you can engage a process server to ensure they are personally served. The process server will then provide you with an affidavit evidencing that they have served the document on your spouse.

A Divorce Application can be opposed if there is an argument about being separated for a period of twelve (12) months prior to filing the Application. To oppose or to respond to an Application for Divorce, a Response to Divorce Court form will need to be filed. This is not usually worthwhile given that, by the time the Court considers your matter, the period of twelve (12) months since separation will have occurred or be close to having occurred. Otherwise, the other main reason for opposing a divorce is that you do not believe Australia is the correct place for you to get divorced.

Once you file your Divorce Application, there will be a Court hearing during which a Divorce Order is made. You will not always have to attend the hearing.  The requirement for your attendance at the hearing is set out below:

  1. If you file a joint Application for Divorce, you do not need to attend the Court hearing, regardless of whether you have any children,
  2. If you file a sole Application for Divorce and have children over the age of eighteen (18) years of age, you do not need to attend Court.
  3. If you file a sole Application for Divorce and have children under the age of eighteen (18), you will have to attend a Court hearing.
  4. If you have marked on the Application for Divorce form that you will attend the hearing, you will have to attend the Court hearing.

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.

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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.

Special Counsel
Accredited Specialist (Family Law)