During your initial consultation, one of the first questions your family lawyer may ask you is the date that you and the other party separated. The importance of determining this date can be significant as it can have an effect on: 

1. for parties’ of a de facto relationship, your limitation date by which you must have either finalised your property settlement or filed an Application with the Court; 
2. for parties to a marriage,  the date on which the parties’ may apply for divorce; 
3. determining any post-separation contributions you or the other party may have made such as inheritances, care of children or financial contributions to the maintenance of the property pool. 

Often the date of separation is clear and perhaps marked by a significant event such as one of the parties moving out of the shared former residence. In these instances, the date of separation is likely easily agreed upon. However, it is not uncommon to have parties disagree as to the date of separation which may turn into an issue which must be determined by the Court.  

What will the Court consider when determining the date of separation? 

In determining a date of separation, the Court may consider: 

• whether the parties’ have continued to share domestic duties; 
• claims made by the parties to third party organisations such as Child Support, the Australian Taxation Office or Centrelink; 
• evidence adduced by friends, family and colleagues of the parties; 
• the sexual history of the parties;  
• whether either or both of the parties have purchased real estate either jointly or separately. 

Valance & Valance [2020] FCCA 2388  

In Valance & Valance, it was necessary for the trial judge to make a determination as to the date of separation as this would have a significant impact on the outcome of the final property orders made. The husband asserted that the parties separated in 2005 and remained living under one roof until 2015 when the wife left the former matrimonial home permanently. Conversely, the wife asserted that the date of separation was not until 2015 when she left the former matrimonial home. The marriage was either one of 30 years with a 10 year separation living under one roof on the husband’s case, or a 40 year long marriage on the wife’s case.  

In making a finding, the trial judge considered the following facts:  

• the husband asserted that he was on a fishing trip with a friend when he received a text message from the wife informing him that the marriage was over. The trial judge subsequently heard evidence from the friend who the husband was on the fishing trip with. 
• On the evidence, it was clear that the wife had followed up this text message by visiting a family lawyer and presenting to the husband a partially completed Application for Divorce. The wife conceded that this had occurred, but that it all blew over after a while and the parties continued with their marriage.  
• The husband asserted that the wife moved out of the couple’s shared bedroom and began sleeping in the spare bedroom from 2005 onwards, which the wife disputed. The parties’ daughter, who was estranged from the wife, gave evidence in support of the husband while the parties’ son, who was estranged from the husband, gave evidence in support of the wife. The judge found that neither parties’ evidence carried significant weight however, as both children stood to benefit from their preferred parent’s date of separation being accepted, even more so in circumstances where there was a risk that should the husband’s date of separation not be accepted, he may have to sell the former matrimonial home which the daughter was residing in.   
• The husband produced diary extracts from 2005, 2007 and 2015 which related to the state of the parties’ relationship.  
• The husband produced evidence that from 2005, he no longer deposited his income into the parties’ joint account. The wife conceded this was true, but did not have any practical effect as the husband still paid the mortgage payments and meet the household expenses.  
• The husband produced further evidence that in 2012, he purchased a property in his sole name whereas the three previous properties which the parties’ had owned were purchased as joint tenants. The wife however, asserted that the property was bought in the husband’s sole name for tax purposes as the husband was employed and the parties intended to negatively gear the property. The wife also produced evidence that she contributed $10,580 toward the purchase of the property and the parties jointly borrowed a further $38,948 to purchase the property.  
• The wife’s brother gave evidence that between 2005 to 2015, he visited the husband and wife in their home and maintained that they shared a bedroom and he did not notice anything different about their relationship. In 2015, the husband and wife also visited the wife’s brother at his interstate home where the parties’ shared a bedroom and attended the wife’s mother’s funeral.   

In discussing this decision, the judge noted that “the constituent elements of a matrimonial relationship are not fixed and can vary not only from marriage to marriage but also within a marriage with the passage of time.” The judge further noted however, that “separation does not necessarily involve the breakdown of every element of the former matrimonial relationship and that parties may have separated even though residual elements of their former relationship still exist.” 

Ultimately, the judge found that the elements of this particular marriage varied over time and he was not satisfied on the balance of probabilities that the parties separated until 2015, when the wife left the former matrimonial property.  

What if we have reconciled for a period? 

As common as it is for parties to disagree as to the date of separation, so too is it common for parties to often reconcile for a period before final separation which may cause confusion as to the “real” date of separation. Fortunately, section 50 of the Family Law Act 1975 sets out that where parties reconcile for a period of up to three months, the initial period of separation may be added to the subsequent period of separation for the purposes of making an Application for Divorce.  

Takeaway 

As set out above, it is important when separating to be clear on the date of separation as it can have an impact on several aspects of your family law matter, whether it be your time limitation date, Application for Divorce or your overall property settlement.