Over the many years helping our clients deal with complex and highly emotive family issues, a common misconception seems to rear its head time and time again – the belief that separation and divorce have the same meaning and the same consequences. However, this is not so and, in fact, the two can sit quite separately to each other.

MEANINGS

The word “separation” does not mean physical separation, but simply the effective breakdown of the matrimonial relationship. Separation may occur:
– from the action or conduct of one of the parties: s 49(1) of the Family Law Act 1975 (Cth); or
– under the one roof (“notwithstanding that the parties have continued to reside in the same residence or that either party has rendered some household services to the other”): s 49(2).

Divorce is available after 12 months’ separation. The actual ground of divorce is irretrievable breakdown of marriage, established by evidence of the parties having lived separately and apart for a continuous period of 12 months immediately before the filing of the application: s 48(1) and (2).

Again, the words “separately and apart” do not necessarily have to mean physically separate and apart. An application for divorce when living under the same roof can be and, however, affidavit evidence will need to be adduced to corroborate the applicant’s claim of separation and the costs of the application will therefore be greater.

Further, when the parties have resumed cohabitation on one occasion of less than three months or any other period the court considers “not substantial” the previous and later periods of separation may be added in calculating the total period of separation: s 50.

A divorce application may not be filed within two years after the date of marriage, without leave of the court, unless a certificate is filed with the application stating that the parties have considered a reconciliation with the assistance of an approved family counsellor, signed by that counseller: s 44(1B). The court may consider granting leave for the application be filed without this certificate if it considers that there are special circumstances: s 44(1C).

CONSEQUENCES

When a separation occurs, the parties may commence dealing with any financial, property and parenting matters that need to be addressed. A divorce order does not need to be made before these matters can be dealt with informally or through the court process.

Again, financial/property and parenting matters do not need to be dealt with in conjunction and they can be dealt with separately. The first step for all family matters is to attempt to resolve the issues at hand informally and without the need for court intervention. Due to the sensitivity of the subject matter, the time delays in court hearings and the increased costs of going to court it is almost always in the parties best interest to attempt to come to an agreement.

Each application, be it financial/property or parenting, has its mandatory court pre-action procedure, however, it is not within the ambit of this post to delve into the particulars of those processes.

A divorce order under s 48(2) of the Family Law Act takes affect one month after after it is made, or after a Section 55A declaration (whichever is the later): s 55(1). A certificate of Divorce issues at that time and the parties are then free to remarry.

A Section 55A declaration is a declaration from the court that it is satisfied:
– that there are no children of the marriage who have not attained 18 years of age; or
– that the only children of the marriage who have not attained that age are the children specified in the court’s order and that:
“(i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
(ii) there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangement have been made.”

Where the court is in doubt whether the arrangements are proper, it may adjourn the proceedings until a family report has been obtained as to those arrangements: s55A(2).

A divorce order also has an effect on financial and property applications. There is a time limit of 12 months after a divorce order has taken effect for filing applications for property and spousal maintenance, except by leave of the court or consent of the parties: s 44(3). Therefore, it is often prudent to issue divorce proceedings as soon as possible to effect the commencement of this 12 month time limit.

CONCLUSION

Whilst the terms “separation” and “divorce” are often used synonymously, it is clear that the two terms have different meanings and different consequences within the family law context. Family law is a very sensitive area of law and it is always our strongest advice that any parties having marital difficulty seek expert counselling services. Whilst this post has been focused on marital relations, the same can be said for defacto relationships in which the potential issues surrounding a relationship breakdown are serious and need to be handled with care and empathy. If you need family law advice, please contact our office on (02) 9600 7277 to make an appointment to talk with one of our family law experts.