Family Law is a uniquely complex area of law because it often requires messy and complicated relationships to be classified into neat boxes. It can be difficult to determine whether your personal circumstances qualify as a legal separation for the purpose of family law proceedings. So, how do you actually know if you are separated?
The legal requirements of separation
Unfortunately, the law does not provide an absolute definition of separation and fortunately, the law does not provide a definition for separation! This seems contradictory; just stick with us for a minute.
The downside to this is that it can be difficult to answer the question ‘Am I separated?’ with a yes or no. The upside is that the law recognises that no two relationships are the same. It also recognises that a strict definition, which turns on factors such as whether the parties live in separate houses, would unfairly exclude some couples who are separated for all intents and purposes but do not fulfil the specific wording of the law.
So the law broadly recognises separation as the breakdown of a relationship, either de facto or spousal. In the context of married couples who separate, a couple may still be considered separated even though the end of cohabitation was caused by only one party. Moreover, legal separation does not require that parties live in separate residences; parties may be separated under one roof. In such instances, the Court will consider the facts of each case individually to determine whether the parties are actually separated.
So, back to my initial question; am I separated?
To answer this question, it is important to consider the nature of the relationship between you and your significant other. Often, it will take time to figure out whether your relationship has broken down and whether you have separated from your partner. The legal definition will not help you answer that question; it will only help you understand the options available to you once you have come to a conclusion.
If you would like to find out more about family law, or believe you have separated from your partner and would like to understand the next step or to find out more about family law property settlement, family law parenting, family law lawyers and the family court system, please contact James Frank for further advice at jfrank@franklegal.com.au or 02 9688 6023.
If you would like to know more about family law and your rights and obligations in familial relationships please contact us.
This article is provided to the reader for general information. It is not legal advice. This article was written by Andrea Spencer & Emily Graham and edited by James Frank.
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