Understanding the Difference Between Separation and Divorce in Australia
When a person or a couple decide to separate, they are faced with not only the pain related to separation, but trying to understand how the law applies to their situation, what the process of separation and divorce involves, and what they should expect as they plan or start moving through the process.
In Australia, understanding the nuances between the legal processes called separation and divorce, is a crucial first step in understanding the pathway ahead.
How the law recognises Marriage:
In the community, marriage is best described as a partnership built on love, commitment, and mutual support, and provides a formalised structure for individuals to create families and share responsibilities.
In the law, marriage involves many elements some of which may or may not be present in a particular marriage. Elements such as residing under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of the children of the marriage.
When a person in a marriage, or a married couple, decide they no longer feel a commitment to that partnership, the couple face the first step in the end of their marriage which is separation.
Separation: The beginning of Change
Separation marks the beginning of a shift in the dynamics of the relationship. It's the stage where couples decide to end their relationship and live separately, either under the same roof or in different residences. Importantly, in Australia, separation is not solely determined by physical living arrangements. It is also about the emotional and psychological aspects of a relationship coming to an end which includes the withdrawal of the elements we associate with marriage, as we have set out above.
Legally, a couple is considered separated when they no longer live together as a couple. However, separation alone does not grant any legal rights or responsibilities. It's a period of reflection and adjustment, which allows individuals to assess their feelings and make informed decisions about the future of their relationship.
Frequently referred to as a trial separation, couples can decide the take a break and work out whether the problems in the relationship can be resolved, or whether the marriage has irretrievably broken down. If it has irretrievably broken down, the next step for a separated couple can be divorce.
Divorce: The Legal Dissolution of Marriage
Divorce is the legal process that formally dissolves a marriage. In Australia, we have a 'no-fault' principle, meaning that fault or wrongdoing is not required for the divorce to be granted. Instead, the sole ground for divorce is the irretrievable breakdown of the marriage, demonstrated by a couple being separated for 12 months (‘the separation period’).
After the separation period, either party can apply for a divorce through the Federal Circuit & Family Court of Australia. It's essential to note the divorce process is distinct from the resolution of financial and parenting matters. Even after obtaining a divorce, couples may still need to address these aspects.
To initiate the divorce process, one party, or both parties jointly, must complete and file an Application for Divorce form with the Court. The application is submitted online, long with the necessary supporting documents such as the marriage certificate, certificates of citizenship and, if applicable, documents related to proving the date of separation under the one roof.
After filing the application, the Application is given a Hearing date. If there are no children of the marriage, you do not need to appear before the Court and the order will be made in your absence, if the Court is satisfied the marriage has broken down irretrievably. If you have children, you will need to appear before telephone and ensure the Court is satisfied appropriate arrangements for the children have been made.
Once the Order granting the divorce has been made, there is a waiting period of 1 month before the divorce takes effect.
At the end of that period of time, the court issues the certificate called ‘Decree Nisi’, which is the formal divorce certificate and the marriage is officially terminated.
While the divorce process primarily addresses the legal dissolution of the marriage, it's essential to note that additional legal steps may be required to settle financial and parenting matters. You can learn about those steps and how The Divorce Studio can help you in our section called “Reaching & Documenting a Settlement Agreement – The Legal Stuff”.
The Importance of Carefully Navigating Separation
Understanding the distinction between separation and divorce is crucial, especially during the separation period. While separated, individuals can start making decisions about their future, including financial and parenting arrangements, even before the divorce is finalised.
Navigating separation with a focus on open communication, low conflict problem solving and the care of the family unit, with the assistance of mediation if needed, can contribute to a more amicable resolution. The goal is to establish a foundation which fosters an environment of cooperation rather than conflict.
The Low-Conflict Approach: The Divorce Studio Way
Australia's first online resource, The Divorce Studio, advocates for a low-conflict, solution-focused, and family-oriented approach to separation and divorce. It recognises that the decisions made during this challenging period impact not only the individuals involved but also the well-being of any children.
The Divorce Studio empowers individuals and couples with the knowledge and tools needed to navigate separation and divorce in a way that minimises conflict and prioritises the interests of the family. Through informative resources, expert guidance, and a supportive community, The Divorce Studio aims to transform the journey from a daunting experience to a path of growth and positive change.
