In Australia there is a common misconception that separation is synonymous with divorce. Although the terms are often used interchangeably there are important legal distinctions between them.
In the circumstance of a marriage breakdown, these terms have entirely different meanings in relation to family law. Knowing these differences is important to the rights of anyone involved.
Divorce and separation lawyers understand these legal distinctions and how to represent their clients’ best interests.
A separation or breakup occurs when a couple declares that their relationship is over. This can be decided by one or both people in the relationship.
A breakup means two people are no longer ‘living together’ as a couple. The parties may however still occupy the same residence as long as they are not in a joint domestic arrangement along the lines of a marriage.
This is known as ‘separation under one roof’ and is not uncommon but can be difficult to prove to organisations like Centrelink who will check is parties are still sharing assets.
This is often the case when financial limitations prevent one party from living separately until a division of assets has occurred.
In a breakup there are no official court documents involved and thus the couple is still considered legally married. Despite this fact, some legal rights will have changed.
If there are children present in the relationship then there must be an agreement for each parent to spend time with and financially support them. A mediator or attorney may be required to help reach an agreement if the two parties cannot do it themselves.
Organisations such as Medicare, Centrelink and other government agencies need to be informed of the breakup. There must also be arrangements to handle any shared debts, bills and bank accounts.
A marriage annulment is not necessary to begin negotiating the division of property. An agreement can be reached and legitimised via court orders or a financial agreement.
The only way to no longer be considered legally married is to carry out an annulment. By law, an annulment of marriage can only occur after a minimum of 12 months after a split.
Breakdown of De Facto Relationships
The breakdown of a de facto relationship sits between a breakup and an annulment. A de facto relationship is a couple that has been living together on a genuine domestic level but are not legally married.
A court can deal with disputes relating to children and finances much in the same way as a marriage annulment, but requires the relationship to meet certain criteria.
There must have been a genuine relationship that has broken down and last for a minimum of 2 years. There must also be a child or children present in the relationship and that both parties had made significant financial contribution. It must be proven that a failure to divide assets would result in unfairness to one or both parties.
Legally a divorce means that two people are no longer married and can now re-marry. An annulment will have an effect on obligations for financial matter, wills and property. Local separation and divorce lawyers Sydney can assist with counselling people on these factors.
When a couple has been separated for the minimum 12 months then a marriage annulment can be applied for through the family court system.
If a couple gets back together during this 12 month period but separates again within 3 months, it does not jeopardise the 12 month breakup period. If the couple gets back together for more than 3 months then the 12 months will need to be restarted before an annulment will become available.
In Australia there is a principle of ‘no fault’ divorce whereby moral questions like infidelity are considered irrelevant in determining who is responsible for the split. An end to the marriage can be applied for by an individual or by the couple, in the latter the parties will be considered as joint applicants.
An annulment is only considered valid if there is no reasonable expectation of reconciliation between the parties. There must also be appropriate and sufficient arrangements for the care of any children in the marriage.
A marriage annulment is usually taken care of in a matter of months but can take longer depending on how complex the circumstances are.
A separation and a divorce are clearly vastly different legal concepts in terms of their weight and permanence. Divorce and separation lawyers are experts at assisting people in understanding their rights in this field.
Author: Oliver Curtis
Hi there. I’m Oliver. I’m just a young boy from the outskirts of… Okay, that’s a lie, I’m not a young boy anymore, although I certainly feel that way at heart.