What is Separation?

Separation is a mandatory period of 12 months during which a partner in a marriage must have the intention of divorcing before a divorce can occur.

Period of Separation

The 12 month period of separation begins the day both parties cease to live together as a married couple, and must be completed before the application for divorce is filed. A party does not necessarily have to inform the other that separation has begun or to take any formal step to prove the commencement of the separation, however it is a good idea to document the beginning of a separation, and inform the other party.

A period of separation does not automatically begin simply because the parties are living apart because of imprisonment, illness or work transfer of one of them. As long as they continue to treat each other as husband and wife they will not be regarded as ‘separated’ for the purposes of the Family Law Act. In these circumstances, one party must usually inform the other that separation has begun before the period begins to run. Alternatively, where there is evidence that one party has started living with someone else, or where contact is not maintained by regular correspondence or visits, the court may presume the separation has begun.

Separation under One Roof

The parties can have been living separately and apart as husband and wife, but still live in the same house. It must be shown that either party or both parties left the marriage relationship and that they live independently of each other. As each marriage relationship is different, the facts which show separation under one roof may vary from case to case.

Normally it is necessary to show that the parties do not share any of the usual activities of marriage, such as sleeping together, eating together or going out together. One party can perform household services, such as ironing and washing, for the other if it is necessary for the running of the home and the convenience of others who live there.

The case for separation under one roof may be strengthened by showing:

• that there were reasons why the parties remained together, for example, lack of finances to obtain separate accommodation, and/or the interests of the children; and
• that the parties intend to live apart in the near future. An intention to continue living under the one roof may indicate a reasonable likelihood of reconciliation.

The court will normally require independent evidence from a neighbour, friend, or relative that there was a separation under one roof. This is called ‘corroborative evidence’. Where spouses intend to live separately under one roof, they should make sure that others know about this decision from the beginning of the separation. Although it is not necessary, it is also a good idea to say that the marriage is over, or to sign an agreement to this effect. While this may seem hard at the time, it ensures that there is no confusion between the spouses, and that one can apply for a divorce after the end of the one year period.

The court will also accept registration with Centrelink of the change in relationship status, as evidence of the separation.

Resuming Cohabitation During Separation

The parties may resume their marital relationship after the separation has commenced, and continue to live as husband and wife for one period of up to three months, without having to start the whole separation period again to be able to apply for a divorce. The separation period stands still during the reconciliation and starts again if and when the parties separate before the three months is up. Isolated acts of sexual intercourse do not break the separation period.

Example – Joe and Florence

Joe and Florence separated in January 1999. They decided to try again to make their marriage work and lived together again for the three months between March and May. The reconciliation didn’t work, so they separated again in May. As they had already been separated for the 2 months from January to March, they only had to wait another 10 months to reach the 12 month period of separation required for the divorce.