Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 21 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
A lot of people seem confused with the meaning of the terms ‘separation’ and ‘divorce’. Many believe that they are much the same thing and are interchangeable. This is not the case.
A separation occurs when one of the parties ends the relationship. Often, they will communicate their intention to leave and other times will just ‘walk out’. There is no legal requirement that the decision to separate in a marriage or de facto relationship needs to be mutually agreed upon. Nor is there any requirement that any notice of intention to separate be given by either party.
To obtain a divorce you need to establish that the marriage has broken down irretrievably and that you have been separated for a minimum period of 12 months.
Some couples are legally separated but remain living under the one roof. This is often for financial reasons to avoid renting or buying another house or to stay close to the children.
As long as the parties can prove that they lived separately and apart and not as a couple, separation under the one roof meets the legal requirements for a divorce.
Indications of living separately under the one roof include: an absence of any physical relationship, a separation of finances, and the purchase of separate groceries.
It is important to realise that the granting of a divorce does not decide issues about the division of property, maintenance or parenting. Its main purpose is to legally end the marriage.
Once you are separated you can commence proceedings for a property settlement. You do not have to wait until you get a divorce.
It is very important that you realise that even though you have separated, maybe for some years, you are still legally married until you obtain a divorce.
This raises some serious issues that you should be aware of.
Any will that you have made, leaving all or a part of your estate to your estranged husband or wife, will still have full force and effect if you die.
So, you may have gone through a messy property settlement and think that everything is now sorted, and you can move on with your life. If you haven’t formally obtained a divorce any wills you have made will still be in full force and effect.
It is recommended that you seek legal advice about the contents of your will as soon as possible after separation.
If you have finalised your divorce, Queensland Law provides that any gift in your will to your former husband or wife, will be revoked and of no effect. Additionally, any appointment of them as executor or trustee will be null and void.
Just because you are divorced doesn’t mean you are legally banned from making a gift to a former spouse in your will.
Provided that you declare in the documents an intention that you wish to make the gift valid, despite the effect of the legislation, you can do so.