SEPARATION LAWYERS WOLLONGONG

The term separation in Australian family law means the decision to end a relationship. Unlike common belief, separation doesn’t always require mutual consent. It can be initiated by one party alone. While many couples assume separation involves physically moving out, that's not always feasible due to financial constraints, the need for stable housing for children, or other personal reasons.

Interestingly, the law recognises that couples can be “separated under one roof” while continuing to live together. The Family Law Act 1975 (Cth) requires a minimum separation period of 12 months and 1 day to prove the breakdown of a marriage before filing for divorce. This separation can be initiated through actions, conduct, or even written communication indicating the end of the relationship.

The courts consider many factors to determine whether separation has occurred, as each relationship is unique. In some cases, merely moving out doesn’t signify separation. A couple can still be considered together if they continue to share intimate connections, social activities, or joint financial responsibilities.

Sometimes people will determine the date of separation as the date that one or both parties to the relationship move out of the home that they were living in prior to separation. However, this is not always the case. In some circumstances, parties will separate and continue to live separately under the same roof for various reasons including access to financial resources and/or inability to rehouse and/or parenting arrangements.

Where it is unclear what date two people have separated (for instance where there is no evidence of separation by way of SMS message, email, or relocation by a party from a residence) the Family Court may be required to determine the date of separation. Some of the factors that would be considered by the Family Court include the following:

• Whether the parties continued to share a room or sleep together after the date of separation (including being intimate)
• Whether or not family and friends were aware that the parties have separated
• Whether or not the parties continued to intermingle their finances
• Whether or not either or both parties made any application to vary their financial circumstances by way of an application to Centrelink
• Whether the parties continued to assist in the day-to-day lives of the other including homemaking duties for example washing and cleaning for the other.

Disputes over the date of separation can have profound consequences in family law matters, particularly in relation to property division, spousal maintenance, and child support, as there are important timeframes determined by it. The experienced family lawyers at Kells can help you deal with these matters and present your case effectively to the Family Court. With our knowledge of family law, our family lawyers are highly capable of helping you achieve the best possible outcome for your unique situation.

Generally, the date of separation of a couple is relevant to property matters and Applications for Divorce.

In property settlement matters, the date of separation may determine whether a party is able to initiate property settlement proceedings, as for de facto couples, they must be commenced within 2 years from separation. Furthermore, the way the court examines the contributions made by each party differs depending on the date of separation.

To apply for a divorce, the court needs to confirm that the parties have been separated for at least 12 months before filing their divorce application.

Separation and divorce are distinct legal concepts that each have its own implications. Separation refers to the end of a relationship, which may involve living apart or remaining under one roof but living separately. Divorce, on the other hand, is the formal legal process that officially ends a marriage after 12 months of separation.

It’s important to understand that divorce doesn’t automatically mean a division of assets. Property settlement and other financial matters, such as spousal maintenance and child support, are separate legal issues that require their own agreements or court orders. The date of separation is important for determining the timeline for divorce and for various financial matters, including the division of assets and liabilities, eligibility for spousal maintenance, and even Centrelink benefits.

Engaging with a family lawyer early in the separation process ensures that your rights are protected, especially regarding financial matters and future entitlements. At Kells, our experienced Wollongong family lawyers are here to guide you through both the separation and divorce processes. We are fully aware that this can be a stressful period for both parties, so we aim for a smooth transition for all involved.

Deciding who remains in the family home after separation can be one of the most contentious issues. Legally, the right to stay in the home depends on ownership or tenancy arrangements. If one party owns the property or is listed on the Residential Tenancy Agreement, they generally have the right to stay. If both parties are joint owners or tenants, both are legally entitled to remain in the home.

In some cases, separating couples may choose to continue living together but lead separate lives—referred to as "separation under one roof." While this arrangement is legally recognised, it can be stressful and emotionally challenging. More often, one party will remain in the home while the other moves out. If there’s a dispute, the courts can grant exclusive occupation to one party, meaning the other must vacate the home.

If you're facing uncertainty about your living arrangements after separation, it's advisable to consult with the family lawyers at Kells. Our family law team can help you negotiate a fair arrangement or seek a court order for exclusive occupation if necessary.

After separation, each person remains responsible for the debts in their own name, including half of any joint debts. It's not uncommon for disputes to arise when one party refuses to pay their share of joint debts, placing pressure on the other to cover the payments or risk default.

If you're struggling to meet your financial obligations after separation, you may be eligible for spousal maintenance, a periodic or lump sum payment to help cover your living expenses. Additionally, if children are involved, child support payments may be necessary to ensure their wellbeing. The amount is assessed by the Child Support Agency, taking into account each parent's income and the time they spend with the children.

If financial disputes become overwhelming, it's a good idea to seek advice from a family law specialist like a separation lawyer. At Kells, our separation lawyers can help you explore your legal options for spousal maintenance and child support and walk you through the often convoluted process of managing debts after separation.

It’s not always necessary to go to court to resolve family law issues after separation. Many couples successfully reach agreements through negotiation or with the assistance of family lawyers, avoiding the need for court involvement. Alternative dispute resolution methods, such as mediation and arbitration, are often highly effective in helping couples settle disputes, including parenting arrangements, in a more amicable and less stressful manner.

However, if an agreement cannot be reached or if the situation involves complex legal issues, involving the Family Court may be necessary to obtain binding orders on matters such as property division or child custody. It’s important to consult with family lawyers early in the process to understand your options and avoid the stress and expense of court proceedings if possible.

After separation, if one partner has more financial resources, the other may be entitled to access additional funds through legal channels. This can include:

• Spousal maintenance - A periodic or lump sum payment from the higher-earning partner to the lower-earning partner to help cover living expenses.
• Litigation funding - Financial support from the wealthier partner to cover legal costs.
• Child support - A payment from one parent to the other to assist with the costs of raising children. This amount is based on both parents' income and the time the children spend with each parent.

To reduce expenses, you might choose to remain in the family home rather than move into a rental property or refrain from paying bills unless you are specifically named on them. An experienced family lawyer or separation lawyer from Kells can help you explore all options for financial support and make sure that your rights are upheld during this challenging time.

There are several key steps you should follow to legally separate in Australia:

1. Communicate with your partner - Clearly inform your partner that you intend to separate. This can be done verbally or in writing but, you must demonstrate your intention to end the relationship.
2. Decide on living arrangements - Whether you move out or continue to live together under one roof, you must demonstrate that your lives are now separate. This includes dividing household responsibilities, finances, and social lives.
3. Notify relevant organisations - Inform institutions such as Centrelink, Medicare, and the Child Support Agency about your separation. You should also update banks, schools, and other organisations as needed.
4. Arrange parenting plans - If you have children, establish a parenting plan that outlines how their care will be managed. This can be informal at first but may eventually need to be formalised.
5. Address financial matters - Work out how to divide assets, debts, and ongoing financial obligations. Both parties must have a fair share of joint property and responsibilities.
6. Seek legal advice - Consult a family lawyer with experience in separation matters to understand your rights and obligations. A separation lawyer can provide valuable guidance on property division, child custody, and other matters.
7. Draft a separation agreement - A formal separation agreement can outline how assets, debts, and child custody will be handled. This is particularly important to avoid disputes down the road.
8. Consider mediation - If disputes arise, mediation services can help resolve issues amicably, without the need for court intervention.