09 Jun All about separation dates
Separation dates- what’s the big deal?
Most of us remember the exact date that we begin a relationship but how many of us consciously recognise the date a relationship ends. Sometimes it can be hard to remember because we have a tendency to repress those memories that are the most hurtful. Sometimes the date will drastically differ between the parties because one person has emotionally vacated the relationship long before physical steps to end it have been taken.
So why is the date of separation so important? Divorce
Ending a relationship is one thing but if you have been married, it isn’t until the divorce has been finalised that it is all really over.
The date of separation in this instance is so important because the law in Australia requires couples to be separated for a period of 12 months before they can apply for a divorce. This means that if you do not agree on the exact date of separation and you can’t provide any evidence to prove that you separated on the date that you have put forward, then in most instances the court is unlikely to finalise your divorce until the 12 month period (according to the later separation date) has passed.
De Facto Relationships and Property Settlement>
Prior to 1 July 2010 the Domestic Partners Property Act 1996 (SA) governed de facto relationships in South Australia. De Facto relationships however are now dealt with by the Family Law Act 1975 (Cth).
**There are some circumstances where your relationship might still fall under the old legislations such as where you have a financial agreement under the old State law or your relationship ended before 1 July 2010.
If you weren’t married but were in a relationship (whether with someone of the same or opposite sex) and were living together on a genuine domestic basis then under Australian law you will be considered to have been in a de facto relationship.
But why does the date of separation matter if we weren’t legally married?
Whether or not you have any right to a property settlement will greatly depend on the date of separation. If the date provided by your former spouse suggests that the relationship was shorter than 2 years in length, unless you are able to provide evidence to contradict this assertion, the court may not have jurisdiction under the Family Law Act to provide any kind of property settlement at all. (where does this bit come from? The Act? – if parties separated after 1 July 2010 they are treated as if they were married)
Similarly, if the other party is claiming that the relationship ended more than 2 years ago, you may no longer have any rights to a property settlement as the law sets a 2 year limitation period for bringing property settlement proceedings. (yes, correct, two year limit to commence property settlement)
What if we separated but were still living under the same roof?
Separation but not in the physical sense
Arguably living together after separation will always invariably muddy the waters. This doesn’t mean that the courts will consider the period of cohabitation as evidence against being separated at that time, what it does mean is that the onus will be on you to provide evidence to the court on how you and your former partner conducted your day to day lives separately from each other during this period.
The court will take into consideration things such as: where you each slept; whether you and your former partner were intimate during this period; whether you performed domestic tasks for each other such as cooking and clothes washing; and whether it was publicly known that you had separated.
Regardless of your situation, the importance of knowing and being able to prove the date of separation cannot be understated.
If you have recently separated and would like to speak to one of our dedicated family law specialists please do not hesitate to call or email us to make an appointment today.