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Is being separated different to being divorced?


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When a marriage breaks down, not everyone divorces.

This is because divorce and separation are different. Whereas divorce is the official ending of marriage, separation is when a marriage or a de facto relationship - in which two people lived together for over 2 years -comes to an end. Since 1999, the law recognises same-sex couples’ de facto relationship.

To become separated, there are no legal procedures. To be divorced, however, an application must be made to the court, and certain criteria must be fulfilled.

While no legal recognition is required to be separated, the Family Law Act 1975 is applicable for both separated and divorced couples when it comes to issues of property settlement and parenting arrangements. Separated couples, therefore, rely on the same laws and the same court systems as divorced couples post-separation.

The same laws are applied to:

Parenting arrangements – Whether a couple is divorced or separated, the law still requires that the best interests of the child be the primary concern.

Property settlement – If a separated couple cannot agree on the division of their property, assets and funds the Family Court will use the same laws as they would a divorced couple to decide on the settlement.

For married couples, therefore, separation affords the same legal rights and obligations as divorce. Many couples, however, choose to officially end their relationship by making an application for divorce. In order for a married couple to be granted a divorce, they must have been separated for at least 12 months. Following this 12 month separation, they may then apply for a divorce. It is important for couples to remember that once a divorce has been made official, there is only a 12 month period in which applications for property settlement and spousal maintenance can be made.

If you need more information on the differences between divorce and separation and what is the best option for your circumstances, solicit help and advice from an experienced divorce lawyer. Canberra, Sydney, Melbourne and all other Australian cities have a number of family lawyers that can help you through your divorce or separation.

If you need help deciding whether divorce or separation is right for you, contact a au divorce lawyer - Canberra and Sydney office locations.


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