Separation vs Divorce – What’s the Difference?
First published June 4th, 2021 and updated on August 23, 2021
In Australia, separation occurs when one party communicates to the other party that they no longer wish to remain in the relationship. This can occur in the context of both marriages and de facto relationships. If you are considering separation vs divorce, then please read on for some helpful advice to help make your decision easier.
Family breakups are often the most stressful and painful experience that any family has to face. It’s important to seek legal advice from a lawyer who specialises in family law because this area of law can be very complex for those unfamiliar with it.
One of the first things you’ll need to consider in your decisions on separation vs divorce proceedings is whether your case will continue as one in a separation status. Separation generally does not involve financial settlements like a divorce case although you may consider a separation agreement to make sure your rights are protected.
If you do separate, you may need to contact some key agencies if you find yourself suddenly separated. Centrelink, the Child Support Agency and your employer are all good places to start. It’s important to contact any other financial assistance programs or benefits you’re receiving to make sure they are notified that your situation has changed.
What You Need to Know When Considering Separation vs Divorce.
It is possible for parties to continue to live together and still be separated. This is called “separation under the one roof”. Separation under one roof exists when parties continue to live together in the same home but no longer live together as a couple. For example, they no longer share the same bed and do not socialise as a couple.
Disagreements often arise as to the date of separation. If you and your partner have discussed separating, or you have communicated to your partner you wish to separate, it is helpful to ensure that this communication is documented in writing. This can be done informally, via text message or email.
The date of separation is important in the family law context. In order to be eligible to make an Application for Divorce, parties must be separated for a period of at least 12 months. Once a Divorce Order has been made, parties have a period of 12 months from the date of the Divorce Order to bring an application for a property settlement.
Parties in a de facto relationship have a period of 2 years from the date of separation to bring an application for a property settlement.
What’s The Difference Between Divorce and Separation?
Divorce is the process of legally ending a marriage whereas separation does not require any legal process. For many people, divorce can be seen as an escape from their current situation. It’s important to know that there are legal rights you may want or need, such as property and parenting arrangements after separation. Divorce legally separates you from your partner financially and you need to know what this means for your financial situation, your living arrangements or any aspect of separation or divorce that can affect you in the future.
There are two types: contested and uncontested divorces. The most significant difference between them is how courts approve them. Some people are unsure of whether they want to divorce or separate. But before you make any decisions, it’s best that you consult with a lawyer first!
Why Choose Separation Instead of Divorce?
Separation is often the last resort for couples who cannot reconcile their differences. It can be challenging to work through the emotional and financial ramifications of divorce.
You are not alone, separations are not uncommon among married couples struggling with tense relationships and irreconcilable issues. Many couples decide to go down the path of separation for different reasons and choose to end their marriage entirely for personal reasons.
For both personal and financial reasons, you need to consider the following:
- If you’re not sure about ending your marriage, a separation can give you space to figure things out and you can still protect both parties financially with a separation agreement.
- Some couples may not want to get divorced for religious reasons, but they can still separate.
- A separation means one spouse may still need to rely on the income of the other spouse, whereas a divorce would end this and many of their rights.
- You can still file taxes as “married filing jointly” and receive some tax benefits by going through a separation.
- You may be able to stay separated and technically married until you finalise pending property settlements that you both agree to resolve while separated.
Why Choose Divorce vs Separation?
A divorce may be preferred for various reasons, and it’s important to know which is best in your case before deciding on separation vs divorce. The sooner you’re aware of the proper steps to take, the easier it will be for you to make an informed choice about whether or not divorce is right for you.
Other situations you need to consider for divorce vs separation are:
- If you don’t see any reason to stay married and are sure that divorce is best for the situation, then a separation might be just wasted time.
- If you want to remarry, it is essential that your current marriage be dissolved so the marriages don’t overlap.
- If you want to sever all ties with your spouse, like making medical or financial decisions for one another, then divorce may be the best option.
If you need to know more about separation vs divorce it is best to speak to a family law lawyer who specialises in all matters related to family law. If you are thinking of separating or have separated we can provide advice about your situation and the best way to resolve matters arising from the breakdown of your relationship especially if there are children involved.
Frequently Asked Questions
Can I have a legally binding separation agreement?
A separation agreement is more accurately known as a Financial Agreement’ under the Family Law Act, also known as a BFA. A separation agreement can be entered into at any time and it ensures that neither party makes decisions about assets or property without consulting with one another first-hand.
Are there any benefits when using a separation agreement?
A separation agreement may end up saving both parties a lot of stress and money. Agreements allow couples to avoid costly legal battles and child custody issues.
Does a separation agreement protect me financially?
After a period of time, you and your spouse can still opt to keep your marriage intact if you both decide that divorce is not right for you. A separation agreement protects you from future disputes and unforeseen property or asset-liability issues.
Does a lawyer need to arrange a separation agreement?
Yes, it is mandatory. Each party must obtain independent legal advice prior to signing a separation agreement. You also cannot use the same lawyer and should not use the same law firm. if you fail to do so your contract will be unenforceable.