Necessary legal requirements to establish separation

4 August 2023


Current at 24 July 2023

Necessary legal requirements to establish separation

For parties to a marriage who have made the decision to separate, there are a number of conditions that must be met in order to establish separation – namely:

  • the intention to separate
  • acting on that intention, and
  • unequivocal communication of the intention to separate.

Separation under the Family Law Act

Section 49(1) of the Family Law Act 1975 (Cth) (the FLA) states that at least one party to the matrimonial relationship can end cohabitation with their partner either through their actions or conduct.

The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

Further elaboration of separation can also be found in the comments of Watson J In the Marriage of Todd (No 2) (1976) 25 FLR 260 where his Honour said (at 262):

“Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed.”

What are some of the signs that a matrimonial relationship has come to an end?

There are no hard and fast rules as to what signs are determinative of a healthy marriage because each relationship is unique. However, there are a number of general signs that can be used to indicate a close matrimonial relationship, such as the living under the same roof, sexual relations, mutual protection, nurturing and supporting a child of the marriage, and recognition both in public, and private of the relationship (per In the Marriage of Pavey (1976) 25 FLR 450 at 455).

However, the Full Court of the Family Court (the Court) In the Marriage of Pavey recognised that all the constituent elements need not be shown in establishing the existence of a matrimonial relationship. This is due to the natural ebbs and flows of a marriage, and because not every relationship is the same. Therefore, when determining whether separation has in fact occurred, it is more useful to compare and contrast the nature of the relationship before, and after. The Court In the Marriage of Spanos [1980] FLC 90-871 said (at 75,516):

“Marriage is made up of a number of variable components, the presence or absence of some or all of which and their degree and frequency of occurrence pointing the one way or the other in each individual case.”

Communication and separation

The Court In the Marriage of Falk (1977) 29 FLR 463 observed that the intention to separate must be communicated, and can be done so directly or indirectly by words or by conduct, however, the communication must be effective (at 471). In determining whether communication was effective, an objective test is applied to determine whether the conduct was overt, unequivocal and specific (at 75,226).

We’re Here to Help

It’s never easy when a marriage has come to an end and there are a number of important issues that need to be resolved under such circumstances. If you have any issue related to the end of a marriage, please seek the help of a legal practitioner who will be able to assist.

O’Sullivan Davies has practitioners experienced in resolving matters for parties whose relationships have come to an end. More information about our services can be found at our About Us page here.


This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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