Living Separately and Apart

Separation of partnered persons

When a marriage or de facto relationship ceases to exist, the partners in that relationship are treated as not a member of a couple. If a couple claim to be separated they must establish that:

• they are living separately and apart permanently, and
• there has been an estrangement or breakdown in their marriage or de facto relationship.

Determining whether a couple have separated

There is no legal definition of separation; however, separation occurs when one or both of the parties to a relationship make the decision to sever or not resume that relation and acts accordingly. Generally, there would be a physical separation as well as an emotional separation between the couple and the delegate would need to consider:

• the circumstances leading up to the separation,
• whether it is a legal separation,
• the date of separation,
• whether the separation is temporary, indefinite or permanent (ie. intentions for the future, likelihood of any reconciliation etc), and
• details of the other partner's whereabouts, living in separate residences and of any maintenance or financial assistance given, received or sought.

Factors to consider in determining separation

Consideration is given to the extent to which the relationship has broken down taking into account the factors in section 11A VEA, such as:

• whether the couple's friends and regular associates see them as a couple,
• attendance at social functions as a couple
• is there any public demonstration of the separation,
• the supporting evidence from independent professional people (doctor, policeman, social worker or Minister of Religion)
• plans and intentions for the future
• effort made physically separate and live independently of each other
• steps taken to obtain separate accommodation
• length of time residence continues to be shared after the separation
• steps taken to initiate formal proceedings, divorce, property settlement, custody of children or maintenance
• provision of maintenance