Couples may consider separating or getting a divorce when a marriage is no longer working. Although these two terms are often used interchangeably, they refer to different legal processes with distinct implications.
Educating yourself on the key differences between separation and divorce is essential. It will help you understand where you stand and allow you to make informed decisions about the process you are going through.
In this article, we share the actualities of both separation and divorce and further elaborate on the main differences between the two.
What is Separation?
Separation refers to the process of living apart from your once-partner while still legally married. Couples may separate informally by simply deciding to live separately or seek a legal separation agreement, which formalises the terms of their separation.
After you separate before starting a family law property settlement, there is no waiting time.
Legal separation agreements may address issues such as:
- Property division
- Spousal support
- Child custody
- Consent orders
Note: You do not have to be living apart to be separated. Couples can separate but both remain in the family home until they find more suitable living arrangements. In such cases, we recommend a written separation date agreed on by the ex-couple. This can be as simple as a text or email. Your separation date is relevant for your property settlement and divorce.
One of the advantages of separation is that it allows couples to take a step back and evaluate their relationship without immediately committing to divorce. Separation can provide a period of reflection and space for individuals to decide whether to work on their relationship or move forward with a divorce.
What is Divorce?
In Australia, you can apply for a divorce when you have been separated for at least 12 months and one day. However, if you decide to divorce first, you must finalise your property settlement within 12 months or two years after you separate if you were in a de facto relationship.
Divorce is the legal process of ending a marriage. It involves filing a petition with the court and obtaining a final judgment that legally terminates your marriage.
Unlike separation, divorce ends the legal relationship between spouses and allows them to remarry if they choose to do so. It also has significant emotional consequences as it can feel like the end of an era and the start of a new life as a single person.
Divorce is a straight-forward procedure that is mainly clerical. The easiest way to apply for a divorce is to make a joint application with your ex-partner. However, if both parties do not agree to the divorce or if your ex is not available or contactable, it is possible to submit a sole application. In general, a joint divorce can be entirely online but sole divorces require a court appearance.
Each case is different, so check the Federal Circuit and Family Court of Australia (FCFCOA) website for more information.
Key Differences between Separation and Divorce
While separation and divorce both involve living apart from one’s spouse (possibly under the same roof), there are several key differences between the two processes:
Legal status
Separation does not end the legal marriage, while divorce does.
Division of assets and liabilities
When you separate, you can start the process to finalise the division of assets and liabilities and get them approved by the family court.
Divorce does not concern assets and liabilities. It is simply a legal confirmation of the end of your marriage.
Remarriage
Couples who are separated are still legally married and cannot remarry.
Once your divorce is finalised you are free to remarry.
Health insurance and other benefits
In some cases, legally separated couples may still be eligible for health insurance and other benefits through their spouse’s employer or family insurance premiums. Once you are divorced, these benefits typically end.
Note: Check all insurance certificates to ensure you are still covered both during separation and after divorce so you are not paying premiums for cover you cannot claim for should the need arise.
Time and cost
The cost and time involved in separation or divorce can vary depending on the complexity of the case and the extent of legal involvement.
Simply deciding to separate is straight-forward in terms of cost and time implications.
However, property settlement i.e. financial separation, can be a lengthy and costly process, sometimes requiring legal support and family court intervention. At Divide, we help separating couples avoid this by offering a smooth, faster and more cost-effective alternative.
Divorce is generally a much easier process than a financial separation but more involved than simply deciding to separate. There is a set cost to divorce depending on whether you make a sole or joint application or are eligible for concessions. See the Federal Circuit and Family Court of Australia (FCFCOA) for current costs.
Conclusion: Understanding the key difference between separation and divorce
Separation and divorce are legal processes that can have significant implications for individuals and families.
While separation may provide a period of reflection and space for couples to evaluate their relationship, divorce legally ends the marriage.
It is essential to understand the differences between separation and divorce and to seek expert advice when considering either option to ensure the best outcomes for you and your family.
