Separation vs Divorce — The Crucial Differences
Unfortunately, it’s a fact of life that relationships can break down — but, if you don’t understand the difference between separation vs divorce, your split could be unnecessarily costly, protracted, and confrontational.
Considering the possible end of your partnership is understandably emotionally tough, yet burying your head in the sand will only prolong the upset — and place unnecessary stress upon you and your children.
Understanding the separation and divorce process, and the actions you should take, allows you to proactively make steps to move on with your life, towards a happier and more content future.
The Difference Between Separated and Divorced
The Definition of Separation
Legal separation in Australia applies to both married couples and those in de facto relationships — that is, where partners of either sex reside together as a couple but haven’t entered a formal marriage.
Under Australian law, separation occurs when one or both parties in the relationship decide to end the union — and then take measures to sever all ties. Generally speaking, for the separation to be recognised, three criteria must be met:
- One individual in the de facto relationship or marriage believes that the partnership is over.
- That individual has expressed this belief to the other party in the relationship.
- They have taken steps that indicate the end of the relationship — e.g. sleeping in a different bed, leaving the family home, or telling friends they have separated.
Bear in mind that physical separation isn’t necessary, you can remain living in the same home — known as separation under one roof. Furthermore, there is no requirement to go to court or follow any statutory procedures to separate — although seeking advice on legal separation in Australia from a Family Lawyer is highly advisable.
The Definition of Divorce
Conversely, divorce occurs when one party takes steps to formally dissolve a marriage through an application for divorce. This needs to be submitted to the FCFCOA (Federal Circuit and Family Court of Australia), together with supporting documentation and a filing fee.
Assuming there are no reasons to reject the application, the court will grant a Decree Nisi — followed by a Decree Absolute one month and a day after the Decree Nisi was originally issued. This indicates that the marriage is over, and either party can then remarry.
As separation requires no court attendance nor legal procedures, you can be separated but not divorced in Australia — i.e. you are still married. This means that it is impossible for you to enter a marriage with another person until you go through the divorce process.
The Connection Between Separated vs Divorce
While separation and divorce have crucial differences, they remain inextricably linked.
Under current law, Australia has a no-fault divorce process. This means that the only requirement for divorce proceedings to commence is that the parties in the marriage have been separated for one year before the application for divorce is made.
Therefore, it’s crucial you know the exact date of separation — and that you can prove this date to a court. This could be in the form of a letter, email, or text message to your ex indicating that you are separating.
However, if no such evidence exists, the court will seek alternative proof to establish the separation date. This may include the day on which you:
- Informed a government body of the split, such as the ATO (Australian Tax Office).
- Separated your financial affairs.
- Began to sleep in a different room to your ex.
- Split household tasks — such as cooking and cleaning.
Establishing a separation date, and making a note of this day, is essential for a smooth divorce process and any subsequent property settlement. It is one of many critical steps you should take in the divorce process — as outlined in our Separation and Divorce Checklist.
Separation v Divorce — What Happens With Assets and Debts?
Even when you separate or divorce, you and your former spouse or partner stay equally liable for your assets and debts.
How these liabilities and assets are shared is determined by a property settlement. And, contrary to popular belief, you can begin and finalise this procedure as early as you wish. There is no requirement for the divorce to be granted.
Addressing the property settlement promptly is advisable. Not only does it mean that your property and financial matters are resolved before the Decree Absolute is issued, but also ensures you meet the strict time frame. Since, after divorce, you only have 12 months to complete the property settlement through a Family Court petition.
Alternatively, you can divide your and your ex’s finances through:
- Informal property settlement.
- Consent order.
Crucial Steps for Separation and Divorce
While separation v divorce may be different, both processes require timely action.
Taking proactive steps early in the separation process — or indeed before it begins — can protect you, your assets, and your mental wellbeing. Furthermore, you don’t need to wait until you’re divorced to split your financial affairs or make arrangements for your children.
Matters that you should be addressing early include:
- Taking legal advice from a Family Lawyer about marriage separation.
- Ensuring you establish, and make a note of, your separation date.
- Arranging where your children will live after the separation of marriage.
- Closing joint accounts and credit cards.
- Safeguarding your personal items before the marriage separation process begins.
- Protecting your privacy — changing pins, passwords, and mailing address.
In many circumstances, break-ups are amicable. Both parties understand that the split is a necessary, albeit painful, action — and agreements and compromises can be made relatively effortlessly about finances, accommodation, and children.
However, break-ups can also be confrontational, antagonistic, and spiteful. Furthermore, what begins as a seemingly cordial separation may become increasingly unpleasant as time progresses.
Therefore, in addition to taking expert legal advice, follow a Divorce and Separation checklist to protect your best interests.
Final Thoughts on Separation and Divorce
If your marriage or de facto relationship is failing, and you’re considering separation and/or divorce, chat with us at Falzon Legal and read our Divorce and Separation Checklist.
Acting promptly and proactively can save you unnecessary heartache, legal complications, and costs. Compassionate and understanding, we will considerately navigate you through your options — providing professional advice tailored to your specific separation vs divorce circumstances.