Staying Married But Separated

Divorce is usually the end result of a marriage breakdown. For many couples, it is the logical move to dissolve the marriage if the parties no longer live together and share a life. Certainly, if either party wants to remarry, it is essential to first obtain a divorce decree. Yet some couples are in no rush to divorce, as staying married but separated can offer practical, financial and even emotional benefits. There are legal implications to this arrangement, and anyone who is in this position should seek legal advice. This article looks at the legal consequences of staying married while separated in Australia.

Ending a marriage

In Australia, a marriage can only legally come to an end if the Federal Circuit and Family Court of Australia or the Family Court of Western Australia grants a divorce. Former couples must first have a period of separation for at least twelve months before they can apply for a divorce. Most commonly, separated couples physically live apart for the prescribed waiting period, but some couples continue to live under the same roof, and may even make several attempts at reconciliation. Ultimately, however, they are able to establish that the relationship has irretrievably broken down and that reconciliation is unlikely.

Staying married but separated

While the description above reflects most situations, a significant number of separated couples opt to remain married but indefinitely separated. The motivations for such an arrangement are diverse, with some people hesitating for religious or cultural reasons, some holding out hope of reconciliation, and others feeling uncertain and daunted by the divorce process.

One reason for this can be that the legal dissolution of the marriage is less important to the parties than the religious or social recognition that the marriage is over. For those in this position, a religious annulment or divorce (such as a talaq) may be all that is required for the parties to feel free of the relationship.

Staying married for the children

Some former couples remain married for practical reasons. This tends to be a particular consideration for people who share parenting responsibility. Some couples believe that they can more effectively co-parent, maintain a united front, and potentially reduce the impact on their children if they remain married. In these cases, the arrangement might help preserve extended family connections and traditions, providing continuity and stability. Some couples continue this arrangement until they have a reason to divorce, such as wanting to remarry.

However, the belief that staying married is better for the children may not always prove to be true in practice. It may in fact be confusing for children for their parents to remain married but separated, as the lack of finality may raise hopes of reconciliation. Moreover, many couples find that they can more effectively co-parent when they have severed legal ties with their spouse and can shift the relationship on to a more formal business-like footing. In that case, finalising the divorce and property settlements as soon as possible allows the parties to start over with a sole focus on the best interests of their children.  

Division of marital assets

Another reason that a former couple may not seek a divorce is because they can reach a property settlement without obtaining a divorce. Many former partners focus on working through the property settlement, a process that can be emotionally and financially overwhelming, and have little energy left to invest in the formalities of obtaining a divorce. Indeed, delaying the divorce can be helpful, as a couple who divorces has a strict 12-month deadline to initiate a property settlement procedure (in exceptional circumstances, the court may allow an application out of time).

Practical issues

Staying married but separated can have practical advantages. For instance, couples can share health insurance and may receive other financial benefits. However, it also means that former spouses remain financially entangled with each other even when they do not share the same goals and day-to-day living experience. This can lead to unintended and unforeseen consequences. The continued existence of a legal marriage signals to the courts and to the community that the relationship is ongoing. Some of the practical complexities of being married but separated include:

1. Debt: although a spouse is not directly liable for a debt incurred in the name of the other spouse, creditors do have recourse to any assets held jointly by the former couple.
2. Estate Planning: even when a couple are separated, inheritance laws still privilege a spouse until there is a divorce order in place. Individuals sometimes overlook the fact that their current will remains legally valid while they are separated but not divorced. If someone dies without a will, their spouse automatically inherits from their estate.
3. Enduring Powers of Attorney (EPA): if someone loses capacity and has not updated their EPA, their former spouse may end up with control of their medical and/or financial decisions. Given the potentially acrimonious relationship between a separated couple, it is important to update an estate plan as soon as possible after a separation.

Staying married but separated is a unique middle ground for a couple facing upheaval and uncertainty. For any advice about applying for divorce or any other matrimonial property matters, please consult our team of experienced family law solicitors. Please get in touch with Go To Court on 1300 636 846 for any legal assistance.