While separation and divorce might sound similar, they have distinct meanings in Australian family law. Understanding these differences is crucial when navigating the end of a relationship. It is crucial to be aware that a property settlement or making arrangements for children can happen immediately upon separation and you do not need to wait for the divorce. You should seek legal advice at separation even if you are amicable and do not wish to do a property settlement straight away.
Separation: The Breakup
Separation signifies the breakdown of a marriage or de facto relationship. It’s the point where you’re no longer considered a couple, even if you still live under the same roof. There might be a mutual agreement, or one partner might inform the other.
Here are some signs of separation, even when cohabiting:
- Sleeping in separate bedrooms
- No longer sharing household duties
- Not participating in social activities together
- Separate finances
- Informing others about the relationship ending
De Facto Relationships and Separation
De facto couples (living together in a committed relationship) don’t go through divorce. However, separation is still relevant. Similar to married couples, de facto partners have a two-year window after separation to deal with property and financial matters through the courts. If this timeframe is exceeded, an exemption application to the court might be necessary and there is no guarantee it will be granted.
Separation and Divorce: The Link
Divorce legally dissolves a marriage. To obtain a divorce, you need to prove a 12-month separation period, demonstrating your marriage has irretrievably broken down. Even if you share a living space, you must show you haven’t lived together as a couple throughout that period. Evidence like separate finances and bedrooms can be helpful.
For marriages under two years, attending counseling before applying for divorce is usually mandatory. Exceptions can be made for cases involving family violence.
The Divorce Process
The Family Law Act 1975 governs divorces, processed through the Federal Circuit and Family Court. It’s a relatively straightforward procedure. You can file an application jointly or individually. Filing fees apply, with potential reductions for concession card holders..
The process involves serving the application on your spouse, either through a lawyer or a process server. Opposition to an application is uncommon, usually centred on contesting the 12-month separation period or jurisdiction issues.
Court Hearings and the Divorce Order
Depending on the circumstances, attending a court hearing might not be necessary. Joint applications or applications involving adult children (over 18) typically don’t require your presence. However, sole applications with minor children (under 18) usually involve a hearing which is usually conducted over the telephone rather than in person.
The court grants a divorce order during the hearing, but it takes effect one month and one day later. Importantly, this order doesn’t address property or parenting arrangements, which require separate legal processes.
Seeking Help
If you need guidance on separation or divorce, contacting the family law experts at Clarity is recommended. We can help you understand your rights and navigate the legal processes involved.
