Legal Separation - in Australia

In Australia

In Australia, the timing of separation may have ramifications affecting both married couples and partners to a de facto relationship.

To qualify for a divorce in Australia, the court must be satisfied that the relationship between the parties has broken down irretrievably. The court will be satisfied that the relationship has broken down irretrievably if there has been a period of 12 months separation immediately preceding the filing of an application for divorce. The applicant must swear on their application that the date of separation is true.

The date of separation is also of significance in the context of Australian de facto relationships. Whether or not the property settlement jurisdiction of the Family Court will be available depends upon whether the de facto couple separated after two years. Furthermore, there is a two year limitation period from the time of separation in which property settlement proceedings must be brought.

An Australian couple may continue to share residency and satisfy the requirements of separation. The Family Court of Australia or the Federal Magistrates Court will consider a range of factors, including: the degree of financial separation between the parties, whether any formal documentation was signed indicating separation, whether the separation was publicly known, whether there were continued levels of intimacy between the parties and whether there was any change in domestic responsibilities. The processes of property settlement and child custody may be addressed from the time of separation. The three legal process of child contact, asset division and divorce are different and applications for each are filed separately. For more information see the Family Law Act 1975.