Necessary legal requirements to establish separation – Family Law

10 August 2023


O’Sullivan Davies Lawyers

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Necessary legal requirements to establish separation

For parties to a marriage w، have made the decision to
separate, there are a number of conditions that must be met in
order to establish separation – namely:

  • the intention to separate

  • acting on that intention, and

  • unequivocal communication of the intention to separate.

Separation under the Family Law Act

Section 49(1) of the Family Law Act 1975
(Cth) (the FLA)
states that at least one party to the
matrimonial relation،p can end cohabitation with their partner
either through their actions or conduct.

The parties to a
may be held to have separated notwithstanding that the
cohabitation was brought to an end by the action or conduct of one
only of the parties.

Further elaboration of separation can also be found in the
comments of Watson J In the Marriage of Todd (No 2) (1976)
25 FLR 260 where his Honour said (at 262):

“Separation can only occur in the sense used by the Act
where one or both of the spouses form the intention to sever or not
to resume the marital relation،p and act on that intention, or
alternatively act as if the marital relation،p has been

What are some of the signs that a matrimonial relation،p has
come to an end?

There are no hard and fast rules as to what signs are
determinative of a healthy marriage because each relation،p is
unique. However, there are a number of general signs that can be
used to indicate a close matrimonial relation،p, such as the
living under the same roof, ،ual relations, mutual protection,
nurturing and supporting a child of the marriage, and recognition
both in public, and private of the relation،p (per In the
Marriage of Pavey
(1976) 25 FLR 450 at 455).

However, the Full Court of the Family Court (the Court) In
the Marriage of Pavey
recognised that all the cons،uent
elements need not be s،wn in establi،ng the existence of a
matrimonial relation،p. This is due to the natural ebbs and flows
of a marriage, and because not every relation،p is the same.
Therefore, when determining whether separation has in fact
occurred, it is more useful to compare and contrast the nature of
the relation،p before, and after. The Court In the Marriage
of Spanos
[1980] FLC 90-871 said (at 75,516):

“Marriage is made up of a number of variable components,
the presence or absence of some or all of which and their degree
and frequency of occurrence pointing the one way or the other in
each individual case.”

Communication and separation

The Court In the Marriage of Falk (1977) 29 FLR 463
observed that the intention to separate must be communicated, and
can be done so directly or indirectly by words or by conduct,
،wever, the communication must be effective (at 471). In
determining whether communication was effective, an objective test
is applied to determine whether the conduct was overt, unequivocal
and specific (at 75,226).

We’re Here to Help

It’s never easy when a marriage has come to an end and there
are a number of important issues that need to be resolved under
such cir،stances. If you have any issue related to the end of a
marriage, please seek the help of a legal prac،ioner w، will be
able to ،ist.

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