The concept of separation is enormously important in family law matters. The court's jurisdiction to make orders in respect of children, or by way of adjustment of property rights, is normally triggered when the parties separate, not when a divorce order is made or becomes final.

In some cases, clarity as to the separation date is essential. Those cases include:

• Applications for Divorce, which may not be filed until 12 months after the date of separation. See Separation for 12 months prior to filing;

• Applications for financial orders for de facto parties, which may not be filed in respect of parties who separated prior to 1 March 2009 (or 1 December 2002 in Western Australia). See De facto law under the Family Law Act and De facto law — state based;

• Applications for de facto financial matters, which must be filed within two years of the date of separation: See De facto law under the Family Law Act and De facto law — state based.

In other cases, the date of separation can be an important consideration for the court in determining the appropriate approach to be taken. Those cases include:

• applications for property settlement involving assets acquired after separation;

• applications for property settlement in terms of the assessment of contributions post-separation; and

• care arrangements for children after separation.

In all cases, the separation date is important for the parties as it marks the psychological end to the marriage or relationship and is almost always a time of significant stress and anxiety. In families where there is or has been family violence, separation marks a time when the affected family member (statistically speaking predominantly the female spouse) is at a significantly increased risk of violence from the perpetrator spouse. Where possible, practitioners should ensure that clients are appropriately advised about safe ways (physically and emotionally) to communicate a wish to separate to their spouse.

Separation essentially means the breakdown of the marital or de facto relationship to the extent that one or both of the parties intends to permanently sever that relationship. Physical separation alone is neither sufficient nor necessary to establish separation, and the court will have regard to a number of factors in determining when, or if, separation has, in fact, occurred.

See What does separation mean.

The Family Law Act 1975 recognises that separation can occur even in circumstances where both parties continue to live in the same house and share some household services. The party (or parties) must provide evidence to satisfy the court that, notwithstanding that they have continued to reside in the same residence, the parties were in fact separated.

Practice Tip: There is nothing in the Family Law Act 1975 (Cth) which actually requires parties to have separated before an order for property settlement adjustment can be made, although it may be difficult for a party to establish that it is just and equitable for the Court to make an order altering property interests if the marriage or de facto relationship is still intact. This was one of the issues before the High Court in Stanford v Stanford . Proving separation under the one (or same) roof tends to be an issue only in divorce applications where separation for at least a 12-month period is a legal requirement before a divorce order can be made.

See Separation under one roof.