Untangling Ties: Understanding Legal Separation

In family law, separation holds significant weight, marking the beginning of a transformative legal journey for couples. From a legal standpoint, separation is more than a physical parting. It involves a complex interaction of emotional, financial and practical considerations.

At its core, legal separation signifies a formal and intentional decision by a couple to live separate lives. Unlike a physical separation, legal separation requires a deliberate intent to cease cohabitation and discontinue the shared aspects of a marital or de facto relationship. This decision can be established through various means, such as living in separate residences or under the same roof but leading independent lives.

From a legal perspective, the crucial aspect of separation lies in the intention to end the relationship. It involves acknowledgment that the once-shared life is transitioning into a state of independence, with each partner assuming individual responsibilities and making decisions autonomously.

However, the legal intricacies of separation go beyond the physical act of living apart.

The Family Law Act recognises separation as the period during which one or both partners believe the marriage or de facto relationship has ended. This belief must be communicated to the other partner, either explicitly or implicitly, making it clear that there has been a decision to live separate lives. It is important to note that the other partner does not have to agree to separate. Parties are separated, even if only one party wants it.

Legal separation also holds implications for property division, parenting arrangements and spousal maintenance. The commencement of separation often triggers limitation periods for the calculation of the necessary separation period as follows:

Married couples

  • In the case of marriage, you need to be separated for 12 months, before you are able to apply for divorce.
  • Once you are divorced, you have another 12 months to finalise any financial issues.

Due to this tight time frame (12 months can go incredibly fast, especially when involved in the legal process), lawyers recommend not to divorce until all financial issues are finalised.

De Facto couples

  • In the case of de facto couples, you have two years from the date of your separation to finalise financial matters. So, in this case, the mere fact of one party communicating or taking practical steps to separate triggers the limitation period.

In conclusion, legal separation involves more than physical distance; it encompasses the deliberate intent to end the marital or de facto relationship and live independent lives. Understanding the legal nuances of separation is crucial for individuals navigating the complexities of family law, paving the way for a smoother transition into the next chapter of their lives.

If you are separating or thinking of separating, contact Catton and Tondelstrand Lawyers on 07 5609 4933 to book a free initial consultation with one of our experienced Family Lawyer.

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For a free initial consultation you can also book online https://www.ctlawyers.com.au/booking/

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