What's the difference between divorce and separation in NSW?

Published 05 Sep 2018

Ending a long-term relationship can be difficult - and there are questions about divorce and separation that need to be answered before any decision is made. One of the most common misconceptions in this area of family law is the use of the two terms above interchangeably. In NSW law, divorce and separation mean two different things, and are treated as such when dividing assets and legal responsibilities.

Here's a guide on the difference between divorce and separation in NSW and what you need to know in order to begin proceedings.

What defines divorce?

Divorce is the process of ending the legal arrangement of marriage made between two parties. Unless you sign a prenuptial or postnuptial agreement, marriage in NSW generally means all assets are split evenly until divorce.

The federal Family Law Act 1975 streamlined the grounds for divorce under one legal term - an 'irretrievable breakdown' of the marriage. The reasons behind this breakdown don't matter, but these requirements need to be met in order to begin divorce proceedings. You also need to satisfy the court that you and your spouse have lived separately for at least 12 months, and there is no reasonable likelihood of resuming married life.

What defines separation?

Separation is defined as the process of a couple indicating their choice to end the relationship. This often occurs when one individual leaves the shared domestic situation, though this isn't the only way separation can occur. 

Separation is generally more applicable to de facto partners. De facto relationships are defined as occurring when two individuals live together for a period of time on a genuine domestic basis. De facto partners have all the same legal responsibilities of a married couple in NSW. This means, when ending the relationship, both individuals must consider the practicalities of dividing or managing their shared assets and responsibilities. 

Why do the two terms get confused?

A married couple can become separated without ever starting the formal process of marriage dissolution through the Federal Circuit Court of Australia or leaving shared accommodation. Similarly, a couple can be considered separated if they can expressly indicate a point in time in which both partners were clear about the relationship ending. This decision can stand even if the pair continue to share the same home and make alternative arrangements for dividing shared assets and responsibilities.

Divorce and separation is a difficult and emotionally-taxing legal area that often requires the assistance of family law specialists. The Malouf Solicitors team can offer expert advice about next steps in your relationship, helping you determine the best path to take. For more information, contact us today.

Please call us on 02 8833 2000 to speak with a lawyer

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