Separation and divorce are two legal terms that are often used interchangeably but have distinct meanings in the Family Court of Western Australia. Understanding the difference between these two terms is crucial for anyone who is experiencing a breakdown of a relationship and wants to know their rights and obligations. In this blog post, we’ll explain the key differences between separation and divorce in the Family Court of WA and why it’s important to know the distinction.
Separation refers to the act of ending a relationship, either de facto or married, where the couple no longer consider themselves to be a couple. Separation is a fact-based situation and does not require any legal intervention. When a couple separates, they can either resolve their issues through mutual agreement or seek assistance from the Family Court of WA.
Divorce, on the other hand, is a legal process that terminates a marriage. To obtain a divorce, the couple must have been separated for at least 12 months, and one of the parties must file an application in the Family Court of WA. Once the Court grants a divorce, the marriage is legally dissolved, and the parties discharge their legal obligations to one another.
Why should you know the difference?
- Legal Consequences: separation and divorce have different legal consequences.
Separation does not dissolve the marriage, meaning that if the parties were married, they can separate and remain legally married and have ongoing obligations to each other. These obligations are further explained later.
A divorce on the other hand, dissolves the marriage, and the parties are no longer legally bound to each other and therefore, a period of time after the divorce, discharge legal obligations.
- Property and financial matters: separation and divorce also have different implications for property and financial matters.
During separation, the parties may choose to resolve any disputes regarding property and finances through mutual agreement out of Court or through the intervention from the Court. Separated de facto parties have two years from the date of separation to initiate proceedings in the Family Court in relation to their property or financial matters, without leave from the Court.
In contrast, a divorced couple has one year from the date of divorce to initiate property proceedings with the Court, without leave from the Court.
- Timeframe: the time frame for obtaining a divorce is different from that of separation.
As mentioned earlier, a divorce can only be obtained once the couple has been separated for at least 12 months. In contrast, couples can choose to separate whenever they please at their own discretion.
Why do I need a divorce and what are my legal obligations?
So, your property matter is done, you and your ex are not fighting about custody of the children, so why would you need a divorce? In short, if you choose to remain married:
- You cannot remarry:
- If you pass away with a will, your husband or wife may contest your estate by making a family provision claim, given that they are still legally married to you. Even if you are separated, you would still be lawfully married. As such, they would be eligible to make a family provision claim:
- If you pass away without a will, your husband or wife will be able to access part or all (depending on the size and other surviving people) of your estate under the intestacy laws. If you died leaving a husband or wife and children, the husband or wife would be able to claim:
- the whole of the Estate if valued under $472,000; or
- if the Estate exceeds $472,000, the first $472,000 plus and 1/3 of the remaining Estate.
Hence, from an Estates perspective, it is preferable to get divorced to ensure that your husband or wife cannot contest the Estate. Whilst we appreciate that getting divorced seems like ‘just another stage’ of a long, drawn-out process, it is important that you understand your legal position.
In conclusion, understanding the difference between separation and divorce in Western Australia is essential for anyone who is experiencing the breakdown of a relationship. Separation and divorce have different legal consequences and implications, and it’s important to know the distinctions so that you can make an informed decision about where to next in your matter. If you are considering separation or divorce, we suggest you seek the advice of a qualified family law solicitor, who can guide you through the legal process and help you understand where to from here.