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What does separation mean in Australian family law?

  • October 3, 2023

Home " Legal Blog " Family Law " What does separation mean in Australian family law?

What does separation mean in Australian family law?

Understanding Separation and Divorce in Family Law

Separation Dynamics in Family Law Separation is not just about living in different places. To be recognised as a legal separation in family law, at least one party must have decided to terminate or not to resume the marital relationship and acted accordingly. As established in the case of Pavey and Pavey (1976) FLC 90-051, physical distance alone is not enough. Interestingly, even if a couple lives under the same roof, they can still be considered separated under family law.

For same-sex couples who were married before the reforms began on 9 December 2017, any period of separation prior to this date is valid, provided they were married at the time and have not been reunited for more than three months.

Grounds for divorce in family law The only recognised ground for divorce in the field of family law is irretrievable breakdown of the marital relationship. Under section 48(1) of the Family Act 1975 (Cth) (the Act), evidence of this is that the partners have lived apart for a continuous period of not less than 12 months before the application is filed. However, if there is a likelihood that the couple will reconcile, the court may refuse the divorce application under section 48(3) and may recommend family counselling.

Impact of Resumption of Cohabitation Rekindling a marriage and resuming cohabitation does not go unnoticed in family law. Such a reunion will affect the timeframe of the separation. The context of each case will determine the nature and extent of the reunion. If a couple separate, then reunite for less than three months and then separate again, the periods of separation before and after the reunion will be combined. These periods should cumulatively amount to at least 12 months under section 50 of the Act. However, the period of reunion does not count towards the 12-month separation criterion.

By understanding these key aspects, individuals can clearly navigate the complex areas of separation, divorce and family law.

The family law attorneys at Choi, Ching Wai & Associates can help you navigate the complexities involved in family law and provide the best legal advice you canclick hereStart your divorce petition. If you have any questions, you canContact Usfor initial help and guidance.

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