What is the difference between Separation and Divorce?
Updated: 19 May 2023 · Read time: 7 minutes
Separation and Divorce are two terms one often hears in the realm of family law. For individuals who are not familiar with legal terminologies, it is natural to feel confused between these two.
Deciding to end a marriage or a de-facto relationship is a stressful and emotionally draining process. Whether it is deciding to take the first step towards a familial breakup or going through it, always seek legal advice from a family lawyer.
Most of the individuals who go through a separation or divorce find it stressful and tumultuous. It is important to acknowledge the difficult situation and reach out for help if you are suffering from stress or mental health issues.
What is divorce?
Divorce is a process where the marriage or de facto relationship between the parties legally ends, that is through the Court. After obtaining a divorce, the parties become independent in terms of their living arrangement and financial situations.
To obtain a divorce in Australia:
- One must be an Australian citizen, or permanent resident, or ordinarily live in Australia and have done so for at least 12 months before the divorce application, and
- One must demonstrate that there has been a separation of at least 12 months between the spouses to establish that the marriage has ‘irretrievably broken down,’ that is they cannot continue their relationships under any circumstances.
In a divorce, the property and financial settlement will either be mutually agreed upon by the parties, or the Court decides after hearing both the parties. It may be the preferred mode of familial break up if one of the parties or both are well-aware that there are no reasons for them to stay together in a marital bond or, if any one of them or both wants to remarry, it is essential that the previous marriage or de-facto relationship be dissolved.
What is separation?
Separation, on the other hand, is when the parties end their marriage or de facto relationship, and they no longer live together as a couple. Here, there is no role or intervention from the Court, and it depends on the will of the parties.
Many couples resort to separation if they are unsure about ending their relationship or marriage and the period of separation gives them time to reflect and decide whether they want to be together or part ways. It is also possible to be separated and still live in the same house.
There is no legal requirement to register a separation. But it is pertinent to note that the date of separation becomes important if the couple down the line intends to get a divorce when they must establish the ‘12-month separation.’
Hence, it would be helpful to document the date of separation in writing through a formal document, or communicate to each other through phone, text, or email.
In a separation, the financial or property settlement is often absent, unless the parties may want to consider a separation agreement to protect their rights.
Please note that there are agencies such as Centrelink, the Child Support Agency that can aid you with financial assistance programs if you get separated and are deprived of financial support.
| Separation | Divorce | |
| Legal status | Still married | Legally ended marriage |
| Financial impact | May involve temporary support arrangements, and sharing of assets and liabilities | Involves formal division of assets and liabilities, potential spousal and child support, and ongoing financial obligations |
| Custody arrangements | Can be negotiated privately or with the help of mediators | Requires a court order or formal agreement |
| Timeframe | Can be temporary or permanent | Permanent |
| Ability to reconcile | Can provide time for couples to work on their issues and potentially reconcile | Ends the marriage and makes reconciliation more difficult |
| Legal process | No formal legal process required | Requires a legal process, including filing a divorce application and potentially attending court hearings |
| Requirements | No specific requirements | Must meet legal requirements, such as living apart for 12 months, before applying for divorce |
What You Need to Know When Considering Separation vs Divorce
When it comes to considering separation vs divorce, there are a few things that you need to keep in mind. Firstly, it's important to understand the difference between the two.
Separation is when a couple decides to live apart from each other, while divorce is the legal process of ending a marriage. In some cases, couples may choose to separate but not divorce, while in others, separation may be a step towards divorce.
One of the main things to consider when debating between separation and divorce is whether or not you are ready to end your marriage for good.
Divorce is a permanent legal process that ends your marriage and has long-term consequences, such as the division of property, finances, and custody arrangements for children. Separation, on the other hand, may provide a temporary break while you work on the issues in your marriage.
Things to Consider When Debating Between Separation and Divorce
Another thing to consider is the emotional and financial impact of both separation and divorce. Separation may allow you and your spouse to take some time apart to work on your relationship, without the added stress and expense of a divorce. However, if you do decide to divorce, it's important to be aware of the costs involved, including legal fees, court costs, and potential financial settlements.
It's also important to consider the impact that separation or divorce may have on any children involved. Children may be impacted emotionally by the decision to separate or divorce, so it's important to approach the situation with care and sensitivity. In some cases, couples may choose to try counselling or mediation to work through their issues and avoid the need for separation or divorce.
FAQs
Is it better to get divorced or separated?
The decision to divorce or separate is a personal one that depends on your individual circumstances. The traditional purpose of separation is to have some breathing space to consider if the parties wish to move to a formal divorce. Divorce, on the other hand, provides a final resolution and legally ends the marriage. A property settlement (the division of the couple's assets) can take place whether you are separated or divorced. It's important to seek professional advice to determine the best option for you.
What about debts and liabilities following separation?
Following separation, couples will need to work out how to divide their assets and liabilities. This can include debts such as mortgages, credit card debts, and loans. It's important to seek legal advice to understand your rights and obligations regarding debts and liabilities following separation.
What not to do during separation?
During separation, it's important to avoid making decisions or taking actions that could negatively impact your legal and financial situation. This includes making large purchases, hiding assets, or engaging in behaviour that could be viewed as damaging to the relationship or your children. It's also important to avoid making unilateral decisions about child custody arrangements.
Can you date when you are separated?
Depending on your personal circumstances, it's important to approach new relationships with caution and sensitivity, particularly if you have children.
It is not illegal to date while you are separated.
Dating during separation can also impact negotiations around property settlements and custody arrangements, so it doesn't hurt to obtain legal advice before moving ahead with this area of your life.
Conclusion
Ultimately, the decision to separate or divorce is a personal one that should be made after careful consideration of all the factors involved.
Irrespective of which path you choose, always prioritise your mental and physical wellbeing in arriving at a decision. Seeking legal advice with a family lawyer can aid you to assess your situation better. If you need assistance with legal issues around separation or divorce, please do get in touch with us.
