Think you're separated? You may need to think again!

Section 48 of the Family Law Act states that married couples must be separated for at least twelve months before either party can apply for a divorce. The separation date is therefore important.

Case law has established that separation occurs when:

1. There is an intention to separate;

2. There is action upon that intention; and

3. There has been communication of that intention to the other party.

You must expressly communicate to your spouse that the relationship is over. The communication can be spoken or unspoken. You can do this by telling your spouse in person, or you can have your solicitor write a letter to your spouse.

Case example 

In the matter of Campbell & Cade the husband considered that the relationship ended when he moved out of the matrimonial home in July 2009. The husband attempted to file a divorce application in December 2011, however the wife disputed that the parties had been separated for 12 months when the application was filed. The wife said that she thought the marriage was continuing even after the husband moved out of the matrimonial home. The wife’s evidence was that she and her husband continued a sexual relationship, socialised together and operated a joint bank account. The Judge found that the Husband had failed to show the court that the parties were separated for 12 months prior to him filing the application. Here, not only did the husband fail to communicate his intention to separate to the wife, but he also failed to act upon that intention as he continued relating to the wife in a manner which the wife took to mean that they were still together.

On the contrary, many couples after separation live under the same roof. In order to show the Court that you have in fact separated even though you still live together, you need to change your
behaviour once you are separated. For example, you may cease to sleep in the same bed as your spouse, you may inform  your family and friends that you are separated and you may stop socialising together as a couple.

It is important to see a lawyer when you separate or are thinking of separating. Getting some practical advice early on will give you an understanding of your rights and obligations. Fox & Staniland
understand that this is a stressful time in your life. We are able to guide you through this with our skill and experience.