To be considered legally separated you would need to show physical and emotional separation. This means that the marriage or de facto relationship has broken down and you have been living apart.
We recommend that you record the date of separation and, where possible, have it confirmed it writing to avoid a potential dispute in the future. Typically, you would handle a property settlement immediately after separation. However, it is important to be aware of the limitation periods where property has not been attended to. A de facto relationship has a two-year time limit whilst a marriage has a 12-month requirement after the divorce is final. For this reason, the parties will generally settle property disputes before divorcing.
However, there may be some circumstances where physical separation is not possible or suitable. If you are separated yet you remain living under one roof, you would need to demonstrate that you have been leading separate lives. In determining this, courts will often look at the following 4 aspects:
1. The financial aspects of the relationship
A strong indication that a current relationship exists is if the parties share finances. This could include bank accounts, loans, welfare, insurance or lease agreements to name a few.
2. The nature of the household
To legally separate, it is necessary to prove that you have lead separate lives on a permanent and indefinite basis. It would be insufficient to show that one party has simply been absent from the home for work purposes as this only demonstrates a physical separation. Other important factors include sleeping arrangements and whether you share cleaning and shopping tasks.
3. The social aspects of the relationship
The following factors would generally indicate a relationship between the parties:
- You take social outings together
- Your friends and family are not aware of a separation
- You only have mutual friends
- You take holidays together
- Neither of you have relationships (including sexual) with other people
4. The presence of a sexual relationship
An intimate relationship would generally indicate that the parties have not separated. The absence of intimacy, however, would not be conclusive evidence of separation.
5. The nature of commitment
This refers to the level of commitment demonstrated between the parties. Indications of a relationship include:
- Continued companionship and intimacy
- Support in a family or personal crisis
- Joint future plans
- Hospital visits and/or assistance if one party is ill
- Neither parties have taken action to obtain a divorce