The date parties separate is an important consideration in family law matters. It is particularly important for property settlement and divorce proceedings. It is the point of reference for when proceedings can be commenced, need to be commenced or to determine whether proceedings should be commenced at all.
For example, in de facto relationships one of the parties has 2 years from the date of separation to commence property settlement proceedings. A married couple must be separated for a continuous period of not less than 12 months before filing an application for divorce.
Relationships are a subjective thing and as such identifying the date of separation can sometimes prove difficult for parties.
So what is separation?
The Family Law Act requires one or both spouses to have formed and acted on an intention to sever the relationship and to not resume living in a married or de facto relationship. Generally this intention is acted upon when one spouse leaves the former matrimonial home and in most circumstances is considered to be the date of separation
The Act however also contemplates circumstances where parties continue to reside under the same roof although they do so separately, for financial reasons, health reasons or to accommodate the needs of their children.
It is important to note that physical separation is not the defining factor when considering the date of separation, as many parties live separately yet their relationship remains intact. This situation may arise when one or both spouses are members of the Armed Forces, for example, or one party is hospitalised or commences residing in an aged care or nursing home facility.
In essence separation requires an intention on the part of one or both parties to end the relationship and simultaneously acting upon this intention with no prospects of reconciliation, as opposed to just physical separation.
For over 40 years Brydens Lawyers have been the family law experts. For all your advice and legal representation in any family law or de facto proceedings do not hesitate to contact Brydens Lawyers on 1800 848 848 or at www.brydens.com.au.