To Separate or Not to Separate – The elements of Separation

In our 3rdsegment of our Divorce in Australia series, we will be discussing the requirements of “Separation” and the meaning of separation in the context of Divorce proceedings under the Family Law Act. 

As outlined in our previous blog, section 48(2) requires that the period of separation be for a continuous period of 12 months before filing the Divorce Application. Furthermore, to the requirement of separation the parties must show that they thereafter lived separately and apart. 

Much has been said, therefore as to what constitutes a separation. It is accepted that physical separation is not necessary nor sufficient to establish “separation” within the meaning of this section. It is not necessary because the section considers the possibility that the parties may be separated while still living under the same roof. 

It is common, that parties continue to reside in the same property after a break down in the marriage. This could be for a number of reasons, but most often it is due to the parties wanting to finalise all property matters that come with the breakdown of a relationship. 

Physical separation by itself is also not sufficient to establish “separation” under the Act, this is because the authorities have established that separation involves the breakdown of the marital relationship. 

In The Marriage of Clarke (1986),Lindenmayer J said that a severance of the marital relationship “involves both a physical element (ie. physical separation) and a mental element (ie. an intention on the part of at least one parties to terminate the marital relationship). 

Physical separation alone in insufficient. Intention alone is insufficient. Both elements need to satisfied to satisfy the requirement of “separation” under the Act. 

The position was effectively summarized by Watson J in In the Marriage of Todd (1976), where his Honour stated that:

“separation” means more than physical separation — it involves the destruction of the marital relationship … where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed.

Ally Hijazi
Senior Solicitor & Partner