Understanding the difference between separation & divorce will help you decide the pathway you want to take to end your relationship. Simply put, separation occurs when one party communicates to the other party that they no longer wish to remain in the relationship. It is as simple as that. This can occur in the context of both marriages and de facto relationships. If you are considering separation or divorce, then please read on for some helpful advice to help make your decision easier.
If you do separate, you may need to contact some key agencies if you find yourself suddenly separated. Centrelink, the Child Support Agency and your employer are all good places to start. It’s important to contact any other financial assistance programs or benefits you’re receiving to make sure they are notified that your situation has changed.
Divorce is the process of legally ending a marriage whereas separation does not require any legal process. For many people, divorce can be seen as an escape from their current situation. It’s important to know that there are legal rights you may want or need, such as property and parenting arrangements after separation. Divorce legally separates you from your partner financially and you need to know what this means for your financial situation, your living arrangements or any aspect of separation or divorce that can affect you in the future.
What You Need to Know When Considering Separation or Divorce
It is possible for parties to continue to live together and still be separated. This is called “separation under the one roof”. Separation under one roof exists when parties continue to live together in the same home but no longer live together as a couple. For example, they no longer share the same bed and do not socialise as a couple.
Disagreements often arise as to the date of separation. If you and your partner have discussed separating, or you have communicated to your partner you wish to separate, it is helpful to ensure that this communication is documented in writing. This can be done informally, via text message or email.
The date of separation is important in the family law context. To be eligible to make an Application for Divorce, parties must be separated for a period of at least 12 months. Once a Divorce Order has been made, parties have a period of 12 months from the date of the Divorce Order to bring an application for a property settlement.
Parties in a de facto relationship have a period of 2 years from the date of separation to bring an application for a property settlement.
Why Choose Separation Instead of Divorce?
Separation is often the last resort for couples who cannot reconcile their differences. It can be challenging to work through the emotional and financial ramifications of divorce.
You are not alone, separations are not uncommon among married couples struggling with tense relationships and irreconcilable issues. Many couples decide to go down the path of separation for different reasons and choose to end their marriage entirely for personal reasons.
For both personal and financial reasons, you need to consider the following:
- If you’re not sure about ending your marriage, a separation can give you space to figure things out and you can still protect both parties financially with a separation agreement.
- Some couples may not want to get divorced for religious reasons, but they can still separate.
- A separation means one spouse may still need to rely on the income of the other spouse, whereas a divorce would end this and many of their rights.
- You can still file taxes as “married filing jointly” and receive some tax benefits by going through a separation.
- You may be able to stay separated and technically married until you finalise pending property settlements that you both agree to resolve while separated.
Why Choose Divorce over Separation?
A divorce may be preferred for various reasons, and it’s important to know which is best in your case before deciding on separation vs divorce. The sooner you’re aware of the proper steps to take, the easier it will be for you to make an informed choice about whether divorce is right for you.
Other situations you need to consider for divorce are:
- If you don’t see any reason to stay married and are sure that divorce is best for the situation, then a separation might be just wasted time.
- If you want to remarry, it is essential that your current marriage be dissolved so the marriages don’t overlap.
- If you want to sever all ties with your spouse, like making medical or financial decisions for one another, then divorce may be the best option.
If you need to know more about separation or divorce it is best to speak to a family law lawyer who specialises in all matters related to family law. If you are thinking of separating or have separated, we can provide advice about your situation and the best way to resolve matters arising from the breakdown of your relationship especially if there are children involved.
Please don’t hesitate to contact one of our friendly team members on 03 9793 7888 or send us an email at admin@justfamilylaw.com.au