Introduction
Q1: If my ex and I have sex after separating, does the 12-month period start over?
A: Not necessarily. As long as you have shown through your actions that the marriage is over, occasional sexual contact will not automatically reset the clock. Reference: Bertrand & Bertrand [2025] FedCFamC2F 1121
Q2: Can we still count as separated if we are living in the same house?
A: Yes. The law does not require you to live at different addresses. What matters is whether the marriage relationship has truly ended. Reference: Campbell & Cade [2012] FMCAfam 508
Q3: If I move out, does that automatically count as legal separation?
A: No. Moving out alone is not enough. You need to intend to end the marriage, act on that intention, and clearly tell the other person. Reference: Shible & Mead [2010] FMCAfam 354
What Legally Counts as Separation?
Many people think separation just means living apart. The law sees it very differently.
Section 48 of the Family Law Act 1975 says the only ground for divorce is that the marriage has broken down for good, proven by 12 months of separation. But the Act does not say what counts as separation. The answer comes from court decisions. Australian courts established the three-element framework through Todd and Todd (No 2) [1976] FamCA 12 and Falk and Falk [1977] FamCA 46:
- Intention to separate. At least one party makes up their mind to end the marriage
- Action based on that intention. Your behaviour must back up that decision
- Clear communication. You must tell the other person that the marriage is over
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.
Key Point: Just thinking about divorce or quietly looking for a new place is not enough. The other person must be clearly told. If you intend to separate but keep acting like you are married, the court may find that the marriage is still going.
Why Getting Separation Right Matters
The separation date sets the starting point for the 12-month waiting period. If the court does not accept the date you claim, here is what happens:
- Divorce application dismissed. You must reapply, costing time and money
- 12-month period recalculated. Starting from the date the court accepts
- Property settlement timeline delayed. This pushes back the entire divorce process
The couple married in 2005. In June 2008, the wife flew back to Lebanon on a one-way ticket. She said she had called her husband to tell him the marriage was over. Five months later she returned to Australia, did not go back to the family home, and filed for divorce in June 2009.
The husband disagreed. He said he was not told about the separation until January 2009. The wife had no written proof. No text messages, no emails, no third-party witnesses.
Outcome: Application dismissed. Physical separation ≠ legal separation. You must clearly tell the other person.
Key Point: The wife actually waited more than 12 months, but because she could not prove when communication occurred, her application was still dismissed.
How to Prove Separation in Different Scenarios
Scenario 1: Sexual Relations After Separation
Common Misconception: Any sexual activity after separation restarts the 12-month period.
Legal Reality: Sexual activity is just one of many elements of marriage, not the determining factor.
Sexual intercourse is only one of a number of elements which cumulatively make up the consortium vitae... Once cohabitation has ceased and one of the partners has by his conduct rejected the marital relationship sexual intercourse between the husband and the wife will not in my view of itself have the effect of a resumption of cohabitation.
In March 2023, the couple reached an interim parenting agreement through mediation, and the wife moved out. After that, they still had sex from time to time, even resulting in another pregnancy. In October 2024, the wife moved her bed back into the family home without permission, and the husband called the police multiple times to have her removed.
Outcome: Divorce granted. Despite the ongoing sexual relations, the husband's actions told a different story. The formal mediation agreement and repeated police calls clearly showed he wanted the marriage to end.
Why did similar sexual conduct lead to different outcomes?
| Factor | Bertrand [2025]Separation established | Campbell & Cade [2012]Separation not established |
|---|---|---|
| Sexual activity | Yes, resulted in pregnancy | Occurred regularly |
| Residence | Separate residences | Husband moved out |
| Social life | Presented as independent individuals | Socialised together, stayed in hotels |
| Finances | Formal parenting agreement | Joint bank account |
Key: The court looks at the overall pattern of behaviour, not a single factor.
Scenario 2: Separation Under One Roof
Australian law allows couples to separate while living in the same house, but proving it is very hard. The court needs solid evidence that you went from living as one family to living as two separate people under the same roof.
For there to be a separation there needs to be not only the communication of the fact from one party to the other but also some action to confirm that intention...
The wife claimed they separated in January 1997, living under one roof for 11 years. Her evidence: the husband moved to a separate bedroom, they ate, did laundry, and socialised separately, and they stopped having sex.
But the husband told a different story:
- They travelled to the United States together in 1998/1999
- In 2007, the wife was still attending marriage counselling to save the marriage
- She did not notify Centrelink of the separation until 2008
Outcome: Application dismissed. Trying to save the marriage in 2007 contradicted the claim that the marriage had ended in 1997.
Evidence checklist for separation under one roof:
- Notify Centrelink or the Australian Taxation Office of changed marital status
- Divide bank accounts and assets
- Cease joint social activities
- Sleep, eat, and do household chores separately
- Provide written notice of separation intention to the other party (keep a copy)
Scenario 3: Moving Out
Common Misconception: Moving out automatically counts as separation.
Legal Requirements: Physical separation + clear communication + behavioural evidence
Remember the Shible & Mead case: the wife left on a one-way ticket, but because she could not prove when she told her husband the marriage was over, her divorce application was thrown out.
Evidence recommendations when moving out:
- Send written notice (text/email/letter) and keep screenshots
- Inform mutual friends or family
- Update contact addresses with banks, insurance, etc.
- Cease joint financial arrangements
How to Make Sure the Court Accepts Your Separation Date
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Written communication is non-negotiable. Shible & Mead shows that even if you have been apart for over 12 months, you can still lose your case if you cannot prove when you told the other person.
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Sexual relations are not the deciding factor. Bertrand & Bertrand shows that as long as your overall behaviour points to the marriage being over, occasional sexual contact will not undo your separation.
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Separation under one roof requires strong evidence. Sanchez & Sanchez warns that any attempt to save the marriage directly contradicts a separation claim.
Do：
- Provide written notice of separation and keep evidence
- Notify Centrelink/ATO of changed marital status
- Separate bank accounts and cease joint finances
- Cease joint social activities and present as independent
Don't：
- Decide to separate internally without informing the other party
- Continue claiming benefits or filing taxes as married
- Maintain joint accounts and financial arrangements
- Continue attending social events as a couple
