A marriage separation (or de facto relationship breakdown) can occur for a number of reasons. It’s also an extremely stressful and emotional situation for both parties involved. But what does ‘separated’ mean and are there any legal implications?
Read on to learn more or speak to one of our experienced divorce lawyers today.
What does ‘separated’ mean in a marriage?
This may seem obvious at first glance, but there is a little more to it. It is often the case that one party may instigate a marriage separation, but the other party does not readily agree. It is also possible that a couple may be legally separated while still living under the same roof. This may happen for a variety of reasons including:
- Work-from-home circumstances
- Child support; or
- As an interim measure while other accommodation is secured
How is marriage separation determined?
In assessing whether or not a marriage separation has occurred, the court will consider a number of factors, such as:
- Whether the couple is sharing a bedroom
- Whether there is an ongoing sexual relationship
- Are finances being shared, or have they been individualised?
- Have government agencies, or private institutions such as banks (and, if appropriate Centrelink) been advised?
- Have friends or family been made aware of the couple’s significantly changed arrangements?
If it is firmly intended that the marriage separation will lead to divorce (or in the de facto case, a property settlement), it is important to establish a definitive timeline, as some events have certain time requirements and impacts.
- Property settlements
- De facto property settlements
How long should a marriage separation last?
In the case of a marriage separation, there are two requirements for the eventual granting of a divorce:
- That there is no reasonable likelihood of reconciliation, and
- The parties have been separated for no less than 12 months
The second item might appear clear cut, but it can become complicated—especially if the couple makes attempts at reconciliation.
If a couple reunites for a period of less than 3 months, then the court will aggregate the periods before and after the reunification to determine the total time of separation. On the other hand, if that period exceeds 3 months, but they separate again, the measurement of separation restarts at the beginning of the second occasion of separation.
What happens if I leave my house during separation?
In a marriage separation where the couple has been living in the family home, there is no law that forces one party to leave, irrespective of who owns the home. That said, leaving one’s spouse, home and children and providing no support is described as abandonment, and will be considered as such by the Family Court in future determinations.
When leaving the home, the party leaving has a right to privacy, but this also applies to the spouse who remains. In other words, the party who has left has forfeited any right to simply come and go as they please, or to have any say in the upkeep of, or any changes to, the property.
However, leaving the home does not equate to giving up the rights to the house in future settlement proceedings, although this may be affected by any prior Binding Financial Agreement.
Who pays the mortgage during separation?
Financial institutions only consider whose name/s are on the mortgage document, and they simply expect payment, whether you’re separated or not.
Whatever arrangement the couple arrives at, the person(s) named on the mortgage is responsible.
Marriage separation process: how do we separate?
The marriage separation process can be an emotionally charged time, even when amicable. Unlike marriage or divorce, there is no defined legal process, although as stated above, certain timeframes are important.
It is important to clearly establish with your spouse:
- Living arrangements
- Finances – recurring bills, payments, insurance
- Child custody and parenting arrangements
Owen Hodge is here for you
Whether you’re early on in the decision to separate or want to officially apply for a divorce, you can turn to Owen Hodge’s family lawyers. With years of experience navigating the family law system, we can guide you through the entire process. Get in touch on 1800 770 780 to schedule an initial consultation.
Marriage separation FAQ
Should I stay separated or get divorced?
There is no legal mandate to divorce, unless either party wants to remarry. That said, once divorce is granted there is a 12-month window where property settlement can be applied for.
What should you not do during separation?
- Don’t make rash decisions while emotionally distraught
- Don’t attempt to hide assets
- Don’t cohabit with your spouse for more than 3 months
- Obtain sound advice from a divorce lawyer
Do you have to support your ex-spouse?
If you have children with your ex, then both parents are legally obligated to financially support their children at least until they turn 18, even after separation. That legal obligation remains, even if one or both parents repartner.
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