Let’s Talk… Divorce -VS- Separation

Written by: Adam Wightman l Canny Legal

The decision to separate from a spouse or partner is a deeply personal one.  People often agonise for months and even years over the decision of whether or not they should separate from their spouse, or even proceed to formally divorce their spouse (in the case of marriages).

People are often hesitant to proceed with a separation and/or divorce as they are concerned as to the effects that it may have on their financial situation, and the ongoing relationship that they enjoy with their children.  However, a further reason why many people delay the decision to separate or divorce is because they are concerned as to the effects that these actions may have on their legal rights.

The ‘No Fault’ Family Law System

Prior to 1975, separated couples were required to prove that one of the parties was ‘at fault’ in the breakdown of the relationship, and evidence was required to be provided to the Court that one of the parties had engaged in certain actions which justified the divorce being granted (such as adultery, insanity or habitual drunkenness).  These factors were also much more relevant in relation to the determination of financial settlements and parenting arrangements.

However, in 1975 the Family Law Act was amended to provide for a no-fault system of divorce, which eliminated the relevance of ‘fault’ as it pertains to divorce, and greatly reduced its relevance as it pertains to financial settlements (whilst retaining some residual relevance in parenting matters to the extent that it effects the best interest of the children).

Parties therefore generally have little reason to delay a separation merely because they feel that they were the ones ‘at fault’ in the breakdown of the relationship.

Legal Information Surrounding Time Limits

De facto and married couples can ‘separate’ at any point in time.

It only requires the intention of one of the parties to end the realationship for the separation to occur, and no formal paperwork is required to be lodged.  Parties can also be deemed to have ‘separated’ even if they continue to live together under the one roof, provided at least one of the parties considers the relationship over and it can be shown that the parties began essentially living separate lives.

Married couples need to be separated for a period of 12 months before they can apply (either individually or jointly) for a divorce.

A divorce then usually takes a couple of months to process and be approved by the Court.  However, parties to a marriage are required to finalise and formalise their financial settlement arrangements prior to the expiration of 12 months following the granting of the divorce (failing which it can become difficult for either of the spouses to issue Court proceedings in the Family Court, unless certain exceptions apply).

De facto couples (couples who were never married) are not required to submit any formal documentation to formalise their separation.  However, de facto partners are required to finalise and formalise their financial settlement arrangements prior to the expiration of 24 months following their separation (failing which it can become difficult for either of the parties to issue Court proceedings in the Family Court unless certain exceptions apply).

De facto partners are generally required to have been in a relationship for at least 24 months and/or own significant assets together and/or have children together to entitle them to a family law adjustment of assets between themselves and their former partners.

The Significance Of Separation + Divorce

The mere act of separating from a spouse or partner, or even proceeding to formalise a divorce (for married couples) does not have any direct legal impact on finalising the parties’ financial arrangements (save for the time limits above) or parenting arrangements.

A formal divorce has the effect of deeming that parties are no longer husband and wife in the eyes of the law, and they are free to marry other people.  A divorce alone does not have the effect of finalising a formal family law property settlement, nor dies it provide either party with any greater or lesser rights in relation to their children.  Family law property settlements and parenting arrangements are important separate processes that can be handled by family lawyers, and which will be detailed in our coming blogs.

A formal divorce has the effect of nullifying those sections of any active Will which provides for assets to be bequeathed between the (now former) spouses.

In this regard, it is important to note that even if married spouses have separated, if one spouse is to die before the divorce is granted, and their Will has not been updated to exclude their estranged spouse, then the estranged spouse will still be bequeathed their inheritance.

Of further concern is the scenario where one separated (but still married) spouse dies before the granting of a divorce, in circumstances where they do not hold a valid Will.  In those circumstances, some or all of the deceased spouse’s assets will pass to the surviving spouse.  This is called the law of intestacy.

These issues are particularly concerning in circumstances of second marriages where the parties are wanting to ensure that the children from their first marriage/relationship inherit their Estate, and that it is not inadvertently passed on to their estranged spouse instead.

Want to know more on what happens to your Will/Estate when you divorce?  Check out this previous blog we put together: What Happens To Your Will/Estate When You Divorce?

Canny Legal + Expert Family Law Geelong

It is vital that all separated couples (whether they are married or not) update their Wills as soon as possible after a separation, and that they are also fully informed as to their family law rights and entitlements and the effects of any separation and divorce on these.

Fortunately for our clients, we have both a Wills and Estates lawyer and a Family Lawyer in-house at Canny Legal who are able to guide you through these processes to ensure that all aspects of your future needs are safely addressed.

Get in touch if you have separated or are contemplating separation from your spouse or partner or are ready to proceed with the process of a divorce, you will be in safe hands with our team.