While often hard to pinpoint, the date of separation is one of the most significant factors in your property settlement or divorce proceedings.
What constitutes ‘date of separation’?
In the context of family law, date of separation refers to when a couple, married or de facto, ends the relationship. It doesn’t have to be mutual and can be communicated or initiated by one party. It also doesn’t require the two people to be living separately, just not living together as a couple.
Why does the date of separation matter?
The date of separation is important for three reasons:
- A couple applying for a divorce must have been separated for at least 12 months.
- Married couples must commence property settlement proceedings within 12 months of a divorce being granted, while de facto couples are required to commence proceedings within 2 years of the date of separation.
- The courts use the date of separation to determine the value of the marital property pool and whether assets and/or liabilities were acquired before or after separation.
What if we don’t agree on the date of separation?
It is not uncommon for separated couples to continue living under the same roof for a period of time after separation, due to financial and/or family reasons. This can sometimes lead to confusion over the actual date of separation. When a separating couple can’t agree on the date of separation, the courts will typically consider factors like when, or if, they:
- continued to share a bedroom
- stopped sharing finances
- continued to have a sexual relationship
- notified Centrelink, Child Support or other government agencies that they had separated
- made family and friends aware that they had separated.
Case in point
This case, Vallis & Estes  FCCA 172 (31 January 2020), highlights why the date of separation is important.
They began living together in 2003. According to him, they separated in May 2014, when she left the country and relocated for work. According to her, they did not separate until October 2016.
During the two years and five months in question:
- He didn’t visit her and showed no interest in doing so.
- They did not have a sexual relationship.
- She suspected him of having another relationship.
- They both visited the same holiday destination – six weeks apart.
- She did not tell him that her mother had a heart attack.
- She took her personal belongings from the home they shared when she moved overseas in 2014.
- She changed her mailing address to her mother’s address in 2014.
- Her June 2016 Pension Statement listed her marital status as single.
- He gave her money, which according to him she agreed to pay back;
– $17,000 in March 2015
– $7,000 in November 2015
– $10,000 in November 2016.
- She could not produce any photos or electronic correspondence to suggest they were in an ongoing relationship.
- She had no photos of them together when she had visited Australia in 2014, 2015 and 2016.
- She was unaware that he travelled overseas for dental surgery.
In ruling on the matter, the court was of the opinion that all of these factors indicated that the relationship ended in May 2014. It was thought that at the time she was well aware that the relationship had ended.
Had the court ruled in her favour and determined that the date of separation was October 2016, it is possible that she would have walked away with more money in the property settlement, as the length of the relationship is a factor that the courts use to determine the split of the property pool.
She also would have been better placed to argue that the $34,000 he gave her in 2015 and 2016 were in fact gifts, rather than loans, and may not have been required to pay him back this money out of her share of the property pool.
As the above case highlights, it is important to do what you can to ensure that your date of separation is documented. While there is no official or formal way of documenting separation here in Australia, taking the below steps can help you to avoid the date being disputed:
- Update your relationship details with organisations like Medicare and Centrelink.
- Make friends and family aware of your separation.
- Separate your finances by closing joint bank accounts and informing your superannuation, insurance and banking providers.
- Get legal advice from an experienced family lawyer.
The team at Lakey Family Law has significant experience in all matters related to divorce, property settlements and parenting matters. We’re here to help and can advise you on how the law applies to your specific circumstances – simply contact us for an initial, obligation free chat.