Often when we meet clients for the first time it becomes apparent there is a general misunderstanding about what the terms “separation” and “divorce” really mean. There is also common misconception in the initial stages following their separation about the implications of separation and divorce on finalising a property settlement.
Here is an article to assist you to understand the differences in the terms “separation” and “divorce” and the potential implications.
Separation occurs when one party to a relationship communicates their intention to end the relationship to the other party to that relationship. It is not necessary that both agree to separate – one party may simply decide this and tell the other. It is possible to be separated but still living together under the one roof.
Divorce is a process whereby a formal application is made to the Court to finalise a marriage following separation. A divorce can only be applied for if there has been an ‘irretrievable breakdown’ of the marriage following a period of separation for at least twelve months. When the divorce application is heard, if all of the requirements have been met, the Court will grant what is called a Divorce Order. Effectively this means that the Court is satisfied that all of the legal requirements have been met to finalise the marriage. That Order becomes final one month and a day later and within a few weeks after that date the Court sends a Divorce Order to each party confirming this.
Once a divorce order is made a copy can be produced if one party to the marriage needs to prove that he or she is no longer married. This may arise in the event of a person wishing to remarry, change their name or obtain a passport.
A Divorce is entirely separate from any other proceedings between a husband and wife and there is no obligation on a party to make an Application for a Divorce or already be divorced before taking steps to finalise any other aspect of the marriage breakdown including property settlement, spouse maintenance or parenting arrangements for children.
However, it is important to be aware that once a divorce order is made “the clock starts ticking” as to a time limitation which applies by which proceedings for property settlement and spousal maintenance must then be commenced. Unless an application to the Court is filed within one year of the date of the divorce order, the leave of the Court is required to commence proceedings. Leave is only granted in very limited circumstances.
For people separating who have been in a de facto relationship any proceedings for property settlement or spouse maintenance must be commenced within two years of separation.
Fortunately most people are able to resolve by agreement, through processes such as negotiation, mediation or collaborative law. These arrangements are formalised with the appropriate documentation prior to the time limitation periods expires, without any need to ever attend at Court.
All too often I meet people who come to me thinking they had long finalised their financial arrangements to discover that they have left themselves exposed as their former partner is now wishing to formalise a property settlement (in spite of informal arrangements they may have already put in place).
What you should do now
It is extremely important to:-
- get advice from a family lawyer about your specific circumstances;
- keep in mind the time limits, referred to above, which apply; and
- ensure any agreements are formalised to ensure they are legally binding, are able to be enforced to prevent either party trying to revisit the arrangements at a later stage.
How we can help you
We specialise in advising, guiding and educating people experiencing relationship breakdown to find solutions to their problems, including finalising a property settlement (before or after their divorce) to ensure their interests are protected moving forward. This can include assisting them to prepare an Application for Divorce.
If you are contemplating separation or have or know of someone who has recently separated, it is important that they obtain advice at the earliest possible opportunity to protect their interests moving forward.
If you are interested to know more about the difference between separation and divorce or how I can help, don’t hesitate to contact our Director, Fiona Caulley.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.