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Is it better to divorce or separate?

When a married couple decide that they can no longer live together, they have to make a tough decision: should they get a divorce or should they separate? This is a question that many couples face, and there is no easy answer. 

In this blog post, we will discuss the difference between divorce and separation, and try to help you decide which is the best option for you and your family.

Separation Vs. Divorce: What’s the Difference?

Australian law treats divorce and separation differently. 

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Separation is when a married couple decides to live separate lives, usually physically apart, but they are still legally married. This means that they have not filed for divorce, and they are still considered to be husband and wife in the eyes of the law.

Divorce is the legal end of a marriage that releases both spouses from their obligations to each other. A divorce order, granted by the Federal Circuit Court or Family Court of Australia, legally ends the marriage and allows either spouse to remarry if they choose.

When to choose divorce over separation?

When we think about divorce, we usually think about it as a last resort – something that couples do when they just can’t make things work anymore. However, there are some situations where divorce may be the best option, even when a separated couple are still on good terms.

Below are three important factors to consider when deciding whether to apply for divorce:

1. Divorce Order starts a 12-month time limit on property and maintenance claims

From the date a divorce takes effect, Section 44 of the Family Law Act 1975 sets a 12 month maximum time limit in which someone may apply to court for a property settlement or spousal maintenance from their ex-spouse.

If you have been married for a minimum of 2 years, you can apply for divorce after having been separated for at least 12 months. Applying for and being granted a divorce can influence rights connected to financial ties between you and your former spouse.

After your divorce is finalised, you or your ex only have twelve months to file any application with the court. Otherwise you may forfeit your right to request a court to order a property settlement or maintenance from your ex.

The choice between legal separation and divorce is a personal one. You’ll need to consider your unique circumstances and what’s best for you and your family.

The most common question after someone has missed the filing deadline is, “What if I’m late?” An application may be filed after the prescribed period has elapsed, but only if the Court grants leave. It’s important to note that it’s going to be a complex process and it will be expensive which is why it’s crucial to get started on your property and maintenance claims as soon as possible. Time and money are of the essence when it comes to divorce.

2. Apply for divorce based on financial reasons

If you own more assets than your ex-spouse, it may be advantageous for you to commence the divorce process as soon thereafter as possible. By doing so, the 12-month period during which proceedings can be commenced will begin to run from the date on which the divorce order takes effect.

However, if your ex has more assets or a higher income than you, then you might want to avoid time pressures and wait to file for divorce until all property, maintenance, and financial settlements are resolved.

The Family Law Act (1975) sets out the basic concepts that the court will focus on when making decisions about money after a marriage ends. In general terms, this involves (1) figuring out how much your joint and individual assets, debts and superannuation interests are worth, (2) determining who contributed what during the marriage in financial and non financial terms, (3) assessing current circumstances and future needs, and (4) determining a fair outcome.

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Remember that divorce is not only about the division of assets; it’s also about the division of debts. So, if you’re carrying a lot of debt, you might want to wait until that’s been resolved before getting divorced.

3. Remarry sooner

If you plan on remarrying, you’ll need to get divorced first. The divorce process can take a while, so if you’re planning on remarrying in the near future, it’s best to start the process as soon as possible.

You cannot get married again until you have officially divorced, and if you can’t find your ex-partner, it’s best to obtain a divorce before even thinking about marrying someone else.

Entering into a new marriage whilst already married is Bigamy, a criminal office that carries a maximum penalty of 5 years imprisonment under section 94 of the Marriage Act.

What’s the best decision for you: legal separation or divorce?

The path you take will depend on your unique circumstances..

Formalising your property settlement and parenting arrangements while remaining married in the eyes of the law is an option for couples. If you choose this route, you will not be able to remarry. The best decision for you will likely be impacted by several factors, from financial or taxation implications to what is happening with regard to the family home and religious or cultural concerns.

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Alternatively if you need finality of the failed marriage then divorce is most likely the best option for you. You’ll need to get property and financial matters resolved within a year of any divorce but as soon as the divorce takes effect you will be free to remarry if you have met someone else.

Final Thoughts

The choice between legal separation and divorce is a personal one. You’ll need to consider your unique circumstances and what’s best for you and your family.

Our team at Arbon Legal Group can navigate the process for you and provide expert advice on the best decision for your particular circumstances.

Give us a call today to schedule a consultation.

Nicole Jevtovic
Nicole Jevtovic has worked in Family, Domestic Violence and Criminal Law her entire legal career. During her years as a divorce lawyer and criminal lawyer, Nicole has appeared in court on almost a daily basis. She has extensive experience in court advocacy and has even run trials herself as a solicitor advocate. While she enjoys court representation, Nicole aims to resolve her client’s matters in the most cost effective and stress-free way possible which is why she is an advocate for mediation and negotiation outside of court.
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