Separation occurs where one partner has communicated to the other partner whether by action or conduct, that the relationship has ended and the parties act accordingly. Alternatively, separation occurs when both parties have agreed and consented that the relationship is over. You do not need to live separately to have separated. You can live separated “under the same roof”.
To apply for a divorce, the marriage must have broken down irretrievably. This means that one or both parties believe the marital relationship has ended permanently. In addition to this requirement, before an application for divorce can be made you must be separated for at least 12 months.
If you are married you can commence property settlement court proceedings at any time before you divorce. After you divorce, you can only commence property settlement Court proceedings within 12 months of the date of divorce or apply to the Court for permission to commence proceedings out of time but your application may be refused.
De Facto Relationships
Either party can commence property settlement court proceedings within 2 years of separating. You can apply to the Court for permission to commence proceedings after 2 years but your application may be refused.
If you separated and then resumed your relationship for less than 3 months before separating again, you can ignore the period when you resumed your relationship. This only applies if the period of resuming the relationship was less than 3 months. If you got back together multiple times or for more than 3 months, you can only count the period from your last separation as the date of separation.
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