There is a great deal to consider when a relationship has ended. Where to live? How to co-parent children? When and how to divide the assets of your relationship?
Keeping track of the date of separation can become as critical as the above concerns. Your separation date impacts two aspects in family law matters:
- Your eligibility to apply for a divorce; and
- Limitation periods impacting property settlements.
These two issues are very different.
Divorce
Once divorced you can legally marry again. There is no obligation for you to apply for a divorce if you are separated. You do not have to be divorced to finalise your property settlement.
For married couples, you can apply for a divorce after 12 months of separation. Once divorced, there is a statutory period of 12 months allowed to finalise your property settlement if you have not already done so.
For de facto couples the limitation period is 2 years from the date of separation.
Unless there is some preference or reason to divorce first, it is best practise to first deal with your property settlement and then apply for a divorce.
Limitation periods
The importance of the separation date becomes problematic if a property settlement has not been finalised within the limitation period. You will be required to ask the Court’s permission to proceed with a property settlement if you are out of time. The Court has the power to accept or refuse your request.
If there is a disagreement about the separation date, matters can become more contentious. There can be occasions where a relationship takes time to end on a final basis. In some cases separated couples continue to live together under the one roof for a period of time. If there is no agreement about the date of separation it may be necessary to provide the Court with evidence about the end of the relationship, which may include evidence from third parties who have observed the end or continuation of the relationship in question.
If you would like to discuss your separation further, contact Nicole Dawson Senior Associate Family Law at Pathway Legal. We have offices located at Maroochydore, Noosa Heads and Gold Coast.
