Am I separated?

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This might seem like a silly question since those of us who have experienced a relationship breakdown can identify a point in time when the relationship ended.  It might have been when you fell out of love, after a big argument or when one of you said to the other you were leaving.

In the eyes of the law, separation is not always clear cut.  It is not uncommon for parties to disagree about when they formally separated.  The date that separation occurred can affect your property settlement or eligibility to apply for divorce.

In Australia, you can apply for divorce 12 months after the date of separation.  Seems straightforward, but what if you are still living in the same house?  What if you break up for a while, get back together and then separate again?  These are some scenarios when the date of separation can be important.

To grant a divorce, the Court must find that the marriage has broken down irretrievably.  This is established by the parties being “separated and apart” for more than 12 months.  Even so, the Court accepts that parties can be separated and living their lives apart from one another, even where they are residing in the same house or under the one roof.

If you want to obtain a divorce from your spouse and you have been living under the one roof, you will need to file corroborating evidence that you were separated.  The Court will consider the nature of the relationship before and after the separation, including whether finances and household duties were divided.

For further information and specific advice relating to your circumstances, please contact our office.

Jacquelyn Curtis is an Associate at Dobinson Davey Clifford Simpson located at 18 Kendall Lane, NewActon, Canberra ACT 2601 and can be contacted on (02) 6212 7600.

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