In our experience with clients, we see some confusion exists as to the meaning of the terms ‘separation’ and ‘divorce’.
Many clients believe these terms are interchangeable, but, they have entirely different meanings in family law.
Separation:
A ‘separation’ occurs when one party to a relationship ends the relationship.
Many times they will communicate intention to end the relationship.
However, sometimes they will just walk out.
It is not required that the decision be mutual.
Sometimes, couples may choose to remain living under the same roof.
In this case, they need to prove to the Court that they were actually separated during this time.
This may be for financial reasons to avoid additional costs of renting/buying or wanting to stay close to the children.
To be separated under the one roof, you need to be able to show that you were actually leading separate lives.
Evidence of this can be finances and accounts kept separate, and the absence of a physical relationship.
The fact that parties buy separate groceries and cook their own meals can also go toward proving the situation.
Implication of separation:
While you are still legally married when separated from your partner, there are, nonetheless, possible legal implications:
1. When children are involved, parents may need to come to an agreement as to the amount of time they will spend with the children and for the ongoing financial support of the children.
2. Negotiations can begin for the division of property.
Divorce:
Divorce involves a formal application to the court to end a marriage following a period of separation of at least twelve months.
A separation of at least 12 months is taken to show an ‘irretrievable breakdown’ of the marriage.
Implications of Divorce:
It is important to know that the granting of a divorce does not decide issues about division of property or maintenance and parenting arrangements for children.
If you want to make arrangements about these issues, you can:
– Make an agreement with you spouse and record it in a parenting plan and/or a Financial Agreement; or
– Make an agreement with your spouse and file it with the court; or
– Seek orders from the court, if you and your spouse are unable to reach an agreement.
As soon as a divorce order is made, you will have one year of the date of the divorce with which to commence proceedings for property settlement and/or spousal maintenance.
Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law
Society. She has been a lawyer for 27 years and is the director of Phelan Family Law, a Rockhampton
legal firm specialising in Family Law only.
Website: phelanfamilylaw.com.au
