We all know the broad differences between being legally separated vs divorced. However, there are nuanced distinctions between them. These differences have legal implications in family law matters. We’ll explain the primary differences in this article.
Key takeaways
Separation ends a relationship. A divorce ends a legal marriage.
Separation has unique requirements and concepts.
Separation agreements under one roof permit couples to continue cohabiting while maintaining their separated status.
There is a 12-month separation period required before applying for a divorce.
Trial separations are an informal way for couples to determine the future of their relationship.
The law allows couples to reconcile for up to three months without resetting their separation period.
Separated couples must inform government agencies of the legal separation.
Divorce has elements unique from legal separation and informal separation.
Different deadlines for property settlements and parenting matters apply to divorcing couples and separating de facto couples.
Divorce has a formal application separation process, while legal separation doesn’t.
Divorce requires a valid marriage certificate. Separating couples don’t require any documentation.
Divorce automatically ends power of attorney between spouses.
Legal separation vs divorce
Let’s begin by defining each term.
Separation agreement (seek legal advice)
Separation occurs when one party chooses to end their relationship with their partner. They should then act on that decision making process and inform their former partner. The other party to the relationship doesn’t need to agree to the legal separation.
Divorce
A divorce is a formal legal process that ends a legal marriage. Australia recognises ‘no-fault’ divorce. This means that the applicant doesn’t need to provide a reason why the divorce depends is necessary on legally separated vs divorced. All that’s required is that at least one spouse believes the marriage has broken down irrevocably.
Legal requirements and concepts in separation
There are certain legal requirements and concepts that are unique to separated couples, especially when the couple is legally separated vs divorced and decides to separate finances and manage their assets independently.
Separation under one roof
The Family Court recognises that leaving a relationship can have profound financial implications for one party more than the other. For example, one party giving up their employment to care for the children involved has serious implications. They sacrifice chances for career progression.
The loss of work experience will severely impact their future earning capacity. As a result, the Family Law Act allows couples to continue to cohabit while pursuing separate lives if the couple decides to do so.
While this situation is common among separated couples, it does require additional proof. Two affidavits must be submitted, explaining the nature of the relationship before legal separation, how it changed, and the couple’s current marital status.
To demonstrate the difference, the affidavit can contrast how various circumstances were handled before a relationship versus after legal separation. These may include:
The sleeping arrangements.
How domestic chores are divided.
How mealtimes are organised.
How financial considerations, such as payment of bills, are handled.
The affidavit should also explain how the separation was communicated. For example, was there a civil discussion, or did you have an argument?
Additionally, it should clarify whether you are legally separated and divorced, as this distinction may affect your legal status and obligations and key differences.
Usually, the affidavits are completed by the parties. However, in some cases, one partner refuses. The other party may approach a family member or friend familiar with the individual circumstances to complete an affidavit instead. Include as many details as you can remember, especially regarding important issues like child custody arrangements, as these details may be critical in legal proceedings.
Separation period (legally separated vs divorced)
Couples must separate for at least 12 months before pursuing a divorce application. The exact date of the legal separation can be difficult to identify precisely.
There’s no legal process for establishing that a legal separation has taken place, and during this time, important matters such as child custody, visitation schedules, arrangements, the division of parental responsibilities, and debts accumulated may need to be addressed.
Legal separation or divorce can last indefinitely, especially when a significant role is played by factors leading to the irretrievable breakdown of the relationship.
Trial legal separation
Trial separations are an informal arrangement that has become increasingly popular. It’s a way for couples to determine if there’s any potential for the parties to salvage the marriage. Couples can set out a separation of time to live separately.
They can then reflect on how they wish to proceed with the relationship. Couples experimenting with a trial separation should talk about parenting, living arrangements, and whether they will maintain separate residences.
Reconciliation and child custody grace period
Australian family law wants to encourage couples to remain together where practicable. To this end, the law gives legally married people the opportunity to try reconciling without eliminating their separation.
During this time, couples may also need to address issues such as child custody and parenting arrangements, ensuring that the best interests of the children are considered while working on their relationship.
Under this provision, couples may choose to resume their relationship. If the reconciliation lasts less than three months, the couple may continue their legal separation where it left off.
If the reconciliation lasts more than three months, the 12-month legal separation requirement will reset. Couples should consider their specific circumstances carefully to make informed decisions about their separation timeline.
Informing government agencies
Various government agencies must be informed after a couple has separated. These agencies can include, Centrelink, Services Australia, and the Australian Taxation Office. You will need to update your information. This allows any certain financial benefits to accurately reflect your new circumstances.
Legal requirements and concepts in divorce
There are particular legal obligations and concepts relevant to couples seeking a divorce, including the separation process. This entire process involves a 12-month period during which couples must live separately before applying for a formal divorce.
Legal deadlines
After a marital relationship breakdown, couples have other responsibilities. They must make child custody arrangements and a property settlement. They can also establish financial support arrangements such as child support or spousal support, which may come with certain benefits. Marital property and parenting arrangements can’t be put off indefinitely.
However, there are different deadlines for married couples seeking divorce proceedings and couples ending a de facto relationship.
De facto couples must settle parenting, child custody, and property matters through a legal separation agreement within two years of the date of separation. A married couple has 12 months after a divorce process is granted to make arrangements for property settlement, child custody, and other related matters.
A married couple remains legally married during their separation agreement. This potentially gives them more flexibility in these situations.
A married couple can seek court orders immediately after separating. There’s no need to wait for a divorce order to be completed. This potentially gives married couples a longer timeframe.
Application process
There is no strict process in place for people to choose legal separation. However, married couples need to make a formal application to the Family Court to obtain a legal separation and divorce. This application can be made by one or both parties.
The process for legal separation and divorce typically follows a 12-month permanent separation for formal agreement, during which couples live apart. After this period, a formal application for divorce can be submitted.
While legal separation allows couples to live apart without officially ending the marriage, they may still be able to file taxes jointly, whereas divorce is the legal dissolution of the marriage.
Both legal separation and divorce involve important considerations such as child custody, property division, and social security benefits.
Documentation
There is no mandatory documentation for people seeking a separation agreement. One common exception is couples who are separated under same roof. They must submit an affidavit to the Court explaining their living arrangements.
After getting married, couples receive a marriage certificate. This shows their marriage legally recognised. This document is essential when getting a separation and divorce. If you were married overseas, your marriage certificate may be in a foreign language. You must obtain a translation of the certificate from an accredited translator.
De facto couples can receive a similar document by registering their relationship with their state government. Registration isn’t essential; however, it does make it easier to prove the status of your relationship and can also serve as a step toward personal growth by formalizing your commitment.
This can be beneficial as a de facto couple must prove the existence of their relationship first in order to establish a separation agreement date, which can also help clarify tax benefits related to asset division and financial situation matters.
Power of attorney
Power of attorney permits a person to make legal, medical or financial decisions on your behalf. In Queensland, if your spouse is invested with your power of attorney, it will be revoked automatically after separation and divorce.
While separated, your power of attorney arrangements will remain in place. It must be changed by the parties. This law is unique to Queensland. In all other states, power of attorney between spouses remains even after divorce.
Conclusion
Separation and divorce are similar concepts. But the differences have crucial legal implications. Legal separation encompasses concepts like ‘separation under one roof’ and a grace period for reconciliation. It also requires couples to inform government agencies before getting divorced. On the other hand, divorce has a formal process.
There are different legal deadlines for family law matters and mandatory documentation. By knowing these differences, you can better understand how your circumstances inform your rights and obligations.
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– Rebecca Smith
If you want in-depth and tailored advice about family law issues, including child custody, property settlements, or drafting a separation agreement, seek legal advice from an experienced family lawyer. Contact our team today for a free discovery call.
