What is separation?

How do you effect a separation? What constitutes separation?

This was discussed in the case of Campbell & Cade [2012] FMCAfam 508

Whilst this may be obvious in most cases, it can be more complicated in some cases. Determining the date of separation can be very important in determining the date to apply for a divorce.

The date of separation can be important in property settlements. Whether assets came into the marriage or whether a liability was incurred, before or after separation can have an impact on the overall division of the assets of the marriage.

If you wish to receive payment of Child Support or other government benefits you may have to show the Department of Human Resources that you have separated.

In the recent decision of Campbell & Cade the husband failed to establish that he had separated from his wife for a period of 12 months despite having moved out of the matrimonial home 16 months prior to filing the Application for Divorce.

Federal Magistrate Scarlett referred to Section 48 of the Family Law Act and noted that “unless it can be shown that the parties have been separated for at least twelve months, the Court has no power to dissolve the marriage.” As to “separation” it was said that  “Physical separation is neither necessary nor a sufficient condition to establish a separation for the purposes of subsection 48(2). The parties to a marriage may regard themselves as being married even though they are living apart for a period of time.”

There are three elements that constitute a finding that separation has occurred:

1.  An intention to separate;
2.  Action upon that intention; and
3.  Communication of that intention to the other party. The communication may be spoken or unspoken. It is sufficient that “there must be some overt separation, some evidence that there are two households not one”.

The fact that the parties engage is acts of sexual intercourse after separation is an important but not decisive factor.

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THE NORTON LAW GROUP SPECIALIST FAMILY LAWYERS IN SYDNEY, CENTRAL COAST AND PARRAMATTA.