Ending a long-term relationship can be difficult—and there are questions about divorce and separation that need to be answered before any decision is made. In some cases, you will hear about the annulment of a marriage.

One of the most common misconceptions in this area of family law is the use of separation and divorce interchangeably. In NSW law, divorce and separation mean two different things, and are treated as such when dividing assets and legal responsibilities.

Here's a guide on the differences between divorce, separation, and marriage annulment in NSW:

Divorce

Divorce is the formal legal ending of a marriage. It is separate and distinct from a property settlement and parenting arrangements after the breakdown of a marriage.

You do not have to get a divorce when you separate unless you want to remarry, but staying married may affect your legal obligations. It is important to get legal advice if you are unsure of what you wish to do.

To be able to get divorced you need to show that your marriage has ‘irretrievably broken down’. This is demonstrated by being separated for 12 months or more, and there is no likelihood of the relationship resuming. The separation can be initiated by one person or both.

Australian law does not look at whose fault it is that the marriage broke down when considering a divorce application.

Separation

Separation is defined as the process of a couple indicating their choice to end the relationship. This often occurs when one individual leaves the shared domestic situation, though this isn't the only way separation can occur.

Separation is generally more applicable to de facto partners. De facto relationships are defined as occurring when two individuals live together for a period of time on a genuine domestic basis. De facto partners have all the same legal responsibilities of a married couple in NSW. This means, when ending the relationship, both individuals must consider the practicalities of dividing or managing their shared assets and responsibilities.

Why do the two terms get confused?

A married couple can become separated without ever starting the formal process of marriage dissolution through the Federal Circuit Court of Australia or leaving shared accommodation. Similarly, a couple can be considered separated if they can expressly indicate a point in time in which both partners were clear about the relationship ending. This decision can stand even if the pair continue to share the same home and make alternative arrangements for dividing shared assets and responsibilities.

What About Annulment of Marriage?

An annulment of marriage in Australia is governed by the Family Law Act and requires a decree of nullity.

A decree of nullity is an order from a judge which says that there was no legal marriage between the parties even though a marriage ceremony may have taken place. If a judge grants an annulment, the marriage is void.

Marriage is something that you need to agree to without being tricked, pressured or forced to marry. You can apply to the court to have your marriage annulled if:

• you were tricked or forced to marry someone
• one of the parties to the marriage was under 18
• you were not able to understand what the marriage ceremony was
• the person you married was already married to someone else
• the person you married is a close relative (parent, grandparent, child or sibling).


The law is complex and difficult to understand so we make sure we take the time to make sure you thoroughly understand and then how we will work with our knowledge of the law to obtain the best possible result.

The end of a relationship is a difficult and emotionally-taxing legal area that often requires the assistance of family law specialists. If you need legal help with separation, divorce, or marriage annulment in NSW, please make an appointment by ringing me on my mobile or emailing me. I am available during office hours at my city office or after hours and weekends at my Riverwood office.

Contact JCL Legal now!

sources: maloufsolicitors.com.au, legalaid.vic.gov.au, familyrelationships.gov.au, gotocourt.com.au