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Separation and Divorce – What’s the Difference?

2 October 2018

“I’m going through a divorce”- what does that really mean?

Not surprisingly a lot of people use the term “divorce” when they are talking about a whole range of different aspects of their marriage breakdown.

In legal terms there are a number of different issues that may arise following a marriage breakdown.

  • Separation;
  • Property settlement;
  • Parenting arrangements;
  • Child support;
  • Spousal maintenance; and
  • Divorce

What is a Divorce?

So, a divorce is just one aspect – it is the legal severance of the marriage. It involves a specific application and when granted by the court a certificate is issued to confirm that you are no longer legally married, meaning you can remarry in the future.

You can only apply for a divorce once you have been separated for a period of 12 months. The law states that this indicates that the marriage has broken down irretrievably. The Family Law Act in Australia is based on a ‘no fault’ system, which means that the reasons for the breakdown of the marriage are not relevant to whether a divorce will be granted.

A divorce does not deal with any other issues that may exist or be in dispute between a couple, such as parenting arrangements or property division. These issues are separate to a divorce and should be addressed following separation, whether or not a divorce has been granted.

It is important to understand that there is no waiting time required following separation before any other issue (eg parenting or property) can be considered and resolved. The 12 months only applies to the divorce application.

Once a certificate of divorce has issue, if no property settlement agreement has been reached, you only have 12 months from the date of the final divorce order to apply to the court for a property settlement. If this time lapses, you will need to obtain special leave from the court before you can make a property settlement application.

As you must wait 12 months to file for a divorce, and you only have 12 months after a divorce to finalise property matters, most people use this time to resolve these other issues, such as property settlement and parenting arrangements. As noted, these issues can be resolved at any time following separation.

So, what is separation?

There is no paperwork or certificate to confirm when separation occurs. Sometimes a dispute will arise between spouses around when separation occurred, particularly if parties remain living together.

In legal terms, separation is when one spouse has communicated to the other spouse an intention to separate and their actions reflect that intention. Usually this will be by way of a physical separation, where one spouse leaves the joint residence. However, the law also recognises ‘separation under one roof’ (and this occurs quite often).

To establish ‘separation under one roof’ it is important that a genuine separation has occurred. For example, there needs to be a real severing of the relationship in all aspects so that there are effectively two households running under the one roof.

If a ‘separation under the one roof’ is being relied upon to meet the 12 months separation requirement for a divorce, the divorce application must be filed with an affidavit from a third party confirming that the relationship has truly broken down.

It is important to understand the difference between a divorce and separation and to be aware of the time limitation ticking once a divorce order is made. You should obtain specialist family law advice following separation to inform yourself of the legal matters that may arise. For a fixed cost appointment call us today on (07) 3221 4300.

A photo a husband and wife considering a divorce
2020-01-29T16:25:50+10:00

Client Testimonials

Your newsletters are great, I appreciate them.
K.B., Carina

Thank you for being very personable, professional and always providing me with the most appropriate advice in my times of difficulty. The other party’s lawyers were extremely aggressive, while Michael Lynch Family Lawyers remained calm and professional.

S.D., Parkinson
The staff at Michael Lynch Family Lawyers were great. Everyone was fantastic, professional, understanding, caring and always communicated with me. I knew I was in good hands.
A.A., Eatons Hill

My solicitor is a good listener. My documentation maintained the high moral ground.

S.S., Hamilton
I appreciate my lawyer’s professional approach and her being on top of my situation.
N.S., Mt Gravatt

At Michael Lynch Family Lawyers I got professional and ‘no-nonsense’ advice, costs were within quoted amounts and my matter was resolved quickly – well done!

L.R., Ascot
Michael is very personable and very good at covering the material and explaining the strategy.
J.O., Hawthorne
I like that my lawyer treated me like a friend and kept jargon to a minimum. She was easy to contact and kept me informed.
L.R., Samford
I like your friendly service and the ability to speak to my solicitor directly.
R.G., Wishart
I really appreciated the happiness of your secretarial staff.
G.C., Clayfield
A personalised and professional service. Information has been clear and provided timely to assist my decision-making.
S.S., Hamilton

Thank you, you kept me sane in a difficult situation and gave me the encouragement and the confidence to keep going. You made me feel extremely comfortable.

A.M., Chambers Flat
I appreciate you being upfront with fee estimates. You also have a fantastic website and the seminars REALLY helped to get me focussed.
T.C., Tarragindi
Your team is professional, warm, friendly and real.
N.R., Crows Nest

I would like to thank your firm for the support and compassion shown while dealing with my matter.

C.M., Brisbane
Amy’s work was extremely professional but above all she has a manner and wisdom in dealing with people under stress. I will be recommending your firm to anyone that requires assistance.
K.H., Augustine Heights
Michael Lynch Family Lawyers always gave me competent and knowledgeable advice. I was consistently kept up to date. The meetings and phone calls were kept business-like, yet caring and thoughtful of my emotional state at the time. Thank you.
J.S., Holland Park
May I take this opportunity to express my gratitude to you and your staff for the excellent professional services I received. In a word, priceless.
D.H., Hendra

Many thanks to Stephanie for her help and support through this time, I was incredibly impressed with her work.

L.K., North Lakes
My solicitor provided a personalised service, prompt and quick responses and cost information prior to my commitment.
G.C., Southport
If I need a family lawyer in the future I’ll be heading to Michael Lynch Family Lawyers again.
C.W., Brookfield
The professionalism and reliability delivered by Amy Honan was fantastic. I had an urgent matter around my property sale and Amy offered to provide assistance over a weekend if I required it – that’s above and beyond!
E.F., Nundah
Amy, thank you. You have been diligent, accurate and pro-active for the entire duration of my matter. I appreciate it.
R.P., Cleveland
Michael Lynch Family Lawyers have really listened to me. I felt confident my case was handled well. The law has changed recently, and I did not feel that a previous law practice I spoke to was suitably up-to-date.
P.B., Carindale
Michael, thank you again for your presence here yesterday. We really appreciated the clarity and accessibility of your presentation. It is a rare thing to find somebody who not only has expertise, but also has a skill in communicating it.
J.S., Brisbane

You, guys, provide extraordinary service.

A.O., North Brisbane

Thank you for helping me through this difficult time. You have been caring, compassionate and efficient. Some of my divorcing friends have not been so fortunate. In my mind, you are the best family lawyer in Brisbane. If anyone I know needs a good family lawyer, I will tell them to speak to you. Thanks again.

B.T., Clayfield
So pleased to have had a good, sound and knowledgeable firm.
C.W., Brookfield

My lawyer was the most knowledgeable of all lawyers I spoke to when looking for a lawyer. Michael Lynch Family Lawyers showed professionalism.

R.R., Brighton
Thank you for providing me with a professional yet empathetic approach to gain the best outcome for me. My solicitor was excellent in explaining the processes and in representing me in Court. You have great customer service!
T.V., Everton Park
Amy, thank you for all that you have done during this matter. You impressed me with your professionalism from our initial meeting, and you have proven beyond doubt, to have had the skills and knowledge required. You are a credit to the company, and I would highly recommend you to anyone in a similar situation.
R.P., Cleveland

Michael Lynch Family Lawyers know what they are talking about.

R.M., Warwick

Thank you Debra for all the work you did for me, you both made the process manageable and brought sense to the chaos.

R.B., Toowong
Thank you for your ongoing conciliatory approach in this matter and as always I appreciate your level headed advice. I certainly feel that I ended up with the right Solicitor.
S.C., Nundah

I’m very glad ‘Michael Lynch Family Lawyers’ is my lawyer and not the other side’s solicitor.

S.S., Hamilton

Michael Lynch Family Lawyers are easy to deal with, and your systems are good.

D.T., Ferny Grove

Your staff is knowledgeable, professional and very calm.

A.C., Helensvale
Thank you for the outstanding legal advice you have provided and professionalism in which you conduct yourself. I am truly thankful that it was you who represented me.
M.T., Stafford
Many thanks for your assistance – life is now great – I’m moving on.
J.K., Mansfield
Thank you, you placed my needs first, you were aware of the need to reach a final result and not get caught up in the personal issues of the other party.
S.L., Moranbah

I have appreciated the way that you and the staff at your firm have handled my situation. I would especially like to mention the professional and caring way my lawyer conducted my case, I am deeply grateful and extremely happy with the results. I will be referring others to your service.

J.H., Wellington Point
I was guided through a really difficult time with expertise of Michael Lynch Family Lawyers. I am more than happy with the outcome of mediation.
J.H., Windaroo

We had such a positive experience with Michael Lynch Family Lawyers, and we highly recommend their services. Meticulous attention to detail, attended quickly to every additional request we made, and made sure we always knew exactly where we were every step of the way. Our lawyer took what was such a stressful and emotional time for our family, and made the process feel so smooth and seamless.

N.B., Brisbane

I was always confident that I was getting the very best advice.

T.S., Flinders

I just wanted to get in touch to say thanks for helping me get through my custody and settlement. Thanks again to you and your staff. You have had a significant positive impact in my kids’ lives!

B.S., Brisbane
Your team’s communication with me was exceptional, I knew exactly what was happening.
A.A., Eatons Hill
Thank you for the great newsletter. Your article on “Coping with Christmas” is brilliant – clear, caring and helpful. Thanks again!
C.T., Bribie Island
I liked my solicitor keeping things as simple as possible.
S.M., Clayfield
My family lawyer was very helpful in assisting me to combat a very ugly situation without stooping to the low levels that the other solicitor attempted to take us.
M.J., Manly
I was impressed by my solicitor’s attention to detail and her concern for me, and that the process was explained to me and that I understood it at all times.
B.W., Chapel Hill

Thank you very much to everyone at Michael Lynch Family Lawyers. Thank you for helping me get my life back and make a fresh start. To have that fresh start without fear and anxiety is priceless.

A.A., Perth
I always felt that the service provided by Michael Lynch Family Lawyers was of a high standard. Each time, after appointments I came away feeling secure. Keep doing what you are and maintain the ‘family feel’ that permeates your services.
C.W., Brookfield

My lawyer has been an amazing help through this stressful time. I will remember her help for the rest of my life. Thank you.

J.H., Brisbane

I really liked the personable service by Michael Lynch Family Lawyers, the simple plain language you adopt and everyone’s patience.

A.O., Kedron
Lovely to deal with and provides a balanced view in what are very difficult circumstances.
A.C., Morningside
My lawyer acted with professionalism in all her dealings with me and with the lawyer on the other side. I was always kept in the loop. I liked her approach. Thanks.
D.S., Coorparoo

After utilising the mediation services team recommended by your organisation, my ex-partner and I were able to reach some interim agreements about parenting. I am incredibly grateful for the advice provided by Debra Effeney; and found your firm’s services to be exceptionally professional. If we needed to consult a family lawyer in the future, we would have no hesitation in reconnecting with your firm.

K.M., Paddington

I was very impressed with the initial interview. Everything was well-explained, and the advice was honest about what I should expect.

C.M., Morningside
Amy, thanks very much to you and your team. Throughout my dealings with MLFL I have been continually impressed with your level of professionalism and, in particular, your understanding of circumstances and the articulate way you conduct yourself. I was completely satisfied with today’s outcome and without your experience and expertise in family law I doubt that the result would have been achieved.
M.R., West End