According to experienced Australian lawyers, separation is a very specific phenomenon under Australian law of domestic relations, because it has a complex and transitory nature, particularly due to its evidentiary significance in a gradually deteriorating marriage. On the other hand, separation is imbued with prominent emotions at varying stages of grief. Thus, separation in Australia is frequently connected with the below stages of grief:

• Denial and shock in the relationship
• Actual anger and blaming of either the former partner or some different person that is allegedly responsible for the deterioration of marriage
• Depression and sadness
• Acceptance and accommodation to new conditions of life

Regulation of separation under Australian statutory and case law

Australian courts substantially extended the statutory dimensions of separation under Australian law. Thus, in Fields & Smith, the court ruled that it was just and equitable to make an order for property settlement.[1] Also, the court verified the equality of contributions pre-separation by the parties and found that the assets of the parties did not alter post-separation due to the efforts of either party. In deciding the case, the court also took into consideration changes in the role of the wife as parent and homemaker post-separation and decided that the changes did not decrease her entitlement to an equal division of the property. In the final analysis, the court held that there should be equal distribution of the parties’ assets upon separation.

In Allesch v. Maunz, the court addressed the issue of discretion and re-exercise of the discretion with regard to the division of property.[2] Thus, in order to re-exercise the discretion by the court, it is incumbent on the parties to provide subsequent evidence proving that the division of property was done in a way that would allow for a further adjustment by way of a sum of money to be made. Comments from the High Court in Allesch v. Maunz make it clear that in re-exercising the discretion, a special emphasis must be placed upon the evidence of the circumstances as they now exist, as distinct from when the order appealed was made.

In Bevan & Bevan, the court sets forth three fundamental principles that provide guidance to trial judges in dealing with various separation related issues.[3] First and foremost, the court stated that determination of a just and equitable outcome of an application for property settlement starts with the identification of existing property interests (as designated by common law and equity). Second, the court reiterated that the discretion conferred by the statute must be performed in conformity with legal fundamentals and must not be based upon a presumption that the parties’ interest in the property are or should be different from those established under common law and equity. In this connection, the court arrived at the conclusion that a determination that a party is entitled to a division of property upon separation fixed by reference only to the matters in s 79(4) of the Family Law Act. The last but not least, the third fundamental principles of separation requires separate consideration of the preliminary question of whether it is just and equitable to make any order altering property interests before the need arises to consider the extent to which existing interests are to be altered and the manner in which that is to be done.

Also, the court in Bolger & Headon highlighted that there is no requirement to ascribe different percentages to various periods in the relationship.[4] Specifically speaking, the court pointed out that, in doing so, there will be inconsistency with a holistic assessment of the parties’ contributions which is what Section 79(4) of the Act requires: it is only of error can be illustrated in the overall result that the appeal would succeed.

[1] Fields & Smith [2015] FamCAFC 57 (17 April 2015).

[2] Allesch v. Maunz (2000) 203 CLR 172.

[3] Bevan & Bevan [2013] FamCAFC 116.

[4] Bolger & Headon [2014] FamCAFC 27.