How is separation established and determines and verifies how long a couple has been separated?
Both parties indeed have to be separated for at least 12 months for either or both of them (in this case, a joint application) to be able to apply for a divorce. Your question is commonly asked, probably because determining the length of time a couple has been separated isn’t as easy as simply numbering months. More than quantifying, what goes on is a thorough evaluation of several factors that can indicate and establish a definite period or length of time that a couple has been separated.
It helps to first know what the law has to say regarding separation. The Family Law Act 1975 cites specific circumstances when separation can be established. Section 49 of the said act states that separation may be held to have happened:
- Even if it’s only the conduct of one party that has caused the end of cohabitation;
- Even if both parties remain to live in the same household—this is called “separation under one roof.”
The bottom line is that there needs to be proof that it was the objective of at least one party to end the marriage and that this intention was either (directly or indirectly) conveyed to the other party.
Proving and establishing separation—both its validity and duration—can sometimes be a complicated matter. In such a case, the Court may have to look at the other aspects of the nature of the marriage. Here are some things that may be considered by the court to deal with disputes on separation dates:
- Whether both parties are living under the same roof
- The absence of sexual relations between parties
- Whether there are children involved
- A clear expression of the intent to separate…
…and many other factors.
Establishing separation and determining how long the parties have been separated can be a complicated process, but something that needs to be carried out nonetheless, especially if you’ve decided to apply for a divorce. You can seek the professional services of a family law expert to help you find clarity in your situation.
