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The difference between separation and divorce
Separation
A separation is the end of your relationship as a couple. But if you’re married, it’s not the legal end of your marriage. You can be separated for as long as you like and remain married.
Divorce
A divorce is the legal end to your marriage. You have to be separated for at least 12 months to apply for a divorce.
Getting a divorce means you can re-marry. It can also affect your rights and obligations when it comes to financial matters and your wishes when you pass away (your will).
Timing is everything
The timing of your separation or divorce can affect your rights and entitlements to a property settlement and spousal maintenance.
For married couples, a claim for property division or spousal maintenance must be made within 12 months of a divorce. There is no requirement for married couples to divorce, so this time limit will continue to remain open if they don’t divorce.
If you were in a de facto or same sex relationship, you have 2 years from the time you separate to start court proceedings for property division or spousal maintenance.
This time limit doesn’t mean the court proceedings have to be finished within 2 years, but they will have to be commenced before the 2 years expires.
As you can see, this is why being able to prove your date of separation can be really important, especially if you were in a de facto or same sex relationship.
Are there any exceptions?
As is often the case, you can ask the court for permission to start court proceedings out of time.
Whilst the court has the power to grant an extension to the time limits, this can be expensive and involve a separate application to the court, just to ask for the extension. And extensions are not always granted.
What next?
If you’re feeling a little overwhelmed and unsure where to start, have a look at our Separation Guide. It's full of really useful ideas and explanations and will take you through the things you need to do following separation, step by step.