When discussing personal relationships, the legal definition of separation is quite specific. There are distinct differences between two parties being legally separated and being divorced. These differences impact your rights and responsibilities as an individual.
What Is the Legal Difference Between Separation vs Divorce?
The Family Law Act defines “separation” to simply mean “living separately and apart”.
For the courts to believe you are separated, you need to show evidence that you are living independently – having separate finances, no longer sleeping together, and being treated socially as being apart. You may be “separated” even if you still live in the same house.
Separation does not need to be mutual – as long as you tell the other person that you consider the relationship ended, you can consider yourself separated from them in the eyes of the law.
However, being separated is not the same as being divorced. If “the marriage has broken down irretrievably”, and you have been separated for 12 months or more, you can apply to the Family Court for a formal divorce that ends the marriage.
You are still considered married in several legal circumstances if you do not divorce.
What Are the Disadvantages of Separation Without Divorce?
The benefits of staying married but separated are few – the ability to reconcile quickly and possibly some minor taxation benefits. However, there are some significant disadvantages if you are sure that the relationship is irreconcilable.
You cannot marry another party while you have not divorced from this marriage. In addition if you have not formally (legally) dealt with the property settlement you may find that then any further assets you acquire in your name after separation, could be up for grabs by your ex-partner, and conversely you may also be liable for any debts they rack up.
This is why many lawyers recommend you enter a binding financial agreement as soon as you can during separation or divorce. You can learn more about Using a Separation Agreement Template in Australia here.
What is a Separation Agreement?
A separation agreement is a general term given to a binding financial agreement. This is a contract made under the Family Law Act (1975) that allows you to end a financial relationship with someone you have separated from. The agreement lays out how all assets and liabilities will be divided, including those under only a single name.
Having an agreement created by your lawyers can be expensive, so many Australians today opt to use DIY separation agreement templates. This is a cost-effective way to make an agreement that complies with the law.
A separation agreement that is not legally binding will be “set aside” if there is a later dispute. To bind an agreement by law, the Family Law Act instructs that both parties must receive independent advice from legal professionals BEFORE signing the agreement.
The lawyer is required to explain the advantages and disadvantages of the agreement and the rights a party gives up if they sign the agreement. The lawyer will also ensure that the drafted agreement complies with the Family Law Act.
If a dispute occurs and a financial separation agreement is valid, parties must divide their financial concerns or face serious legal repercussions.
What is Proof of Separation?
Many government services require proof of separation. When creating a separation agreement, it will contain a separation declaration. If you are separating from your husband or wife, Centrelink and other government services must be informed. Each has its own documentation that will need to be submitted for you to receive the correct help from services.
Is Separation Different for De Facto v Married Couples?
When you are separated from a de facto relationship, you will not need to get a divorce. However, you still have some of the same financial rights and responsibilities as married but separated parties. A separation agreement is still important as a party may dispute how assets have been divided up to two years from the date of separation.
Is There Automatic Divorce After a Long Separation in Australia?
No. Unless you apply and are granted a divorce, you are still married under the Family Law Act. This can cause many issues when filing paperwork and prevents you from marrying anyone else.
