Does it matter if we can’t agree on our separation date for our divorce?

In family law world, separation requires three features: the breakdown of the marriage, that the breakdown be communicated between the spouses and that it be acted upon. It is common for separated spouses to disagree on the exact date their marriage ended. However, if you and your ex have vastly different views about the separation date, this may impact when you should apply for a Divorce Order.

What are the family law divorce requirements for separation?

Separation requires three features:

• the breakdown of the marriage
• that the breakdown is communicated from one party to the other
• that one or both of the parties act as though the relationship has ended.

Separation can occur despite the spouses continuing to reside together in the same household.

Those requirements seem obvious – how can people disagree about when they separated?

In my experience, there is often no definitive ‘our marriage is over’ type discussion between spouses. Couples sometimes drift apart and they start behaving in a way consistent with their belief that the relationship has ended, despite never articulating it. For example, a spouse may start sleeping in a separate bed, not wear their wedding ring, or they may pursue romantic relationships with other people.

There are many reasons why a couple may behave between themselves as though they’ve separated, but still present to other people as being in an intact relationship. For example, to try to shield young children from the potential trauma of knowing their parents have separated, or due to religious or cultural pressure.

Why might disagreement about our separation date impact our divorce?

Except for some limited technical exceptions, to apply for a Divorce Order, spouses need to be separated for a continuous period of at least 12 months. This is a problem if you want to apply for a divorce, thinking that you separated from your spouse 12 months ago, while they genuinely believe it was much more recent.

If your spouse alleges that you separated less than 12 months ago, the only way the court can resolve this is to conduct a hearing to test each spouse’s evidence. That expensive exercise can be avoided by simply delaying the filing of your application until 12 months after your spouse’s version of the separation date has occurred.

You may be annoyed at having to wait a little longer to obtain your Divorce Order. However, most people are not desperately wishing to re-marry so quickly that the delay will cause any practical problems.

If you have any questions about your separation date or divorce, please do not hesitate to contact me or one of the other family lawyers in our workgroup.