Separation must be proven if it is disputed by the other party at a later time. Therefore, it is a good idea to confirm the separation in writing, even if this is via text message or email, close to the date of separation.
If you can prove you live separate lives, separation can take place under one roof and it can also be a gradual process.
In the case of a divorce, the date of separation is recorded on the Application for Divorce and is sworn to be true and correct by the Applicant. If there is a challenge to the date of separation by the Respondent, the Court will not grant your divorce until that issue is determined at a Hearing.
If there is a dispute about your date of separation, the Court will examine a number of factors to determine when and if a separation has taken place, such as:
- did you sleep in separate rooms or together after the alleged date of separation
- did either of you perform domestic duties such as cooking and washing for each other after your agreed date of separation
- did you lodge or sign any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single person
- did you continue to be intimate with your spouse after the date of separation
- was it was publicly known (did you tell friends or family), that you had separated
You can get back together for up to three months without restarting the 12-month separation period. For example, if you are separated for four months, get back together for almost three months and then separate again for eight months, this will be considered a total of 12 months’ separation. However, if you were back together for four months only the most recent eight months would count towards the 12 months separation.