August 2018 | Les Stubbs
In our experience with clients we see some confusion exists as to the meaning of the terms ‘separation’ and ‘divorce’. Many clients believe these terms are interchangeable, but, they have entirely different meanings in family law.
Separation
A ‘separation’ occurs when one party to a relationship ends the relationship. Many times they will communicate intention to end the relationship. However, sometimes they will just walk out. It is not required that the decision be mutual. Sometimes, often for financial reasons, couples may choose to remain living under the same roof. A couple can still be deemed separated while they are still living under the same roof. If this applies to your situation, you may need to prove to the court that you were separated during this time.
Implication of separation
While you are still legally married when separated from your partner, there are, nonetheless, possible legal implications:
- When children are involved, parents may need to come to an agreement as to the amount of time they will spend with the children and for the ongoing financial support of the children.
- Negotiations can begin for the division of property.
Divorce
Divorce involves a formal application to the court to end a marriage following a period of separation of at least twelve months. A separation of at least 12 months is taken to show an “irretrievable breakdown” of the marriage.
Implications of divorce
It is important to know that the granting of a divorce does not decide issues about division of property or maintenance and parenting arrangements for children. If you want to make arrangements about these issues you can:
- Make an agreement with your spouse and record it in a parenting plan and/or a Financial Agreement; or
- Make an agreement with your spouse and file it with the court; or
- Seek orders from the court, if you and your spouse are unable to reach an agreement.
As soon as a divorce order is made, you will have one year of the date of the divorce with which to commence proceedings for property settlement and/or spouse maintenance.
What you need to do
If you are considering a separation or a divorce, it is extremely important to get advice from a family lawyer about your specific circumstances. At Harris Freidman Lawyers we offer a caring and practical approach to help clients deal with difficulties faced during a relationship breakdown. If you are interested to know more about the difference between separation and divorce or how we can help, please contact me (lstubbs@hflawyers.com.au ) at Harris Freidman – (02) 9023 9111
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