It is common to hear the words ‘separation’ and ‘divorce’ used together. You may assume that they can be used interchangeably. This is not the case, however. The words have very distinct legal meanings.
Separation
Separation is the practical ending of a relationship. Anybody who has been in an intimate relationship can separate from their partner, regardless of gender or marital status. One of you may end the relationship or you may both decide together that the relationship is over.
Divorce
Divorce, on the other hand, is the legal termination of a marriage. Divorce is only available for marriages recognised as valid under Australian law. This means that if you are in a de facto relationship, you cannot get divorced. Same sex couples cannot get divorced in Australia either, even if you were validly married in another country. You don't have to blame either party for the marriage breaking down. All you need to prove is that you have been living separate lives for a year and that it is extremely unlikely that you will ever restart your relationship with each other. A divorce application may be made by you alone or by you and your ex together.
When you separate, lots of practical changes take place such as untangling your living and financial arrangements and letting friends and family know that you are no longer a couple. The law may become involved to help you divide your property and make suitable arrangements for your children. If you are married, separation also starts the clock counting as you must be separated for 12 months before you can apply for a divorce.
Why divorce matters
Divorce has many legal consequences. Among other things, divorce:
- allows you to remarry (if you have separated from a validly recognised marriage);
- automatically cancels those parts of your will which relate to your ex; and
- means you have 12 months to finalise or start a court case about any property and maintenance disputes.
For further information about divorce contact the author Merridy Gordon.