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15 Feb 2018

It’s a special day for most, teeming with flowers, chocolate treats and heart-shaped trinkets… But for failing couples, Valentine’s Day looms like a dark cloud, serving as a bitter reminder that the relationship is not all it was dreamt it to be.

If Valentine’s week has left you sitting on the byline of your marriage, clutching to old memories and hopelessly lost for a solution – it could be time to actively take steps towards salvaging your marriage.

But what actually works? You’ve tried communicating more, reinstating date night and even couples’ therapy… You’ve pulled out all of the hat tricks but to no avail.

In a last desperate attempt to save a relationship, it is increasingly common for married couples to trial separation for a period of time, taking a step away to reflect, contemplate, and ideally, come to a mutual resolution – after all, they do say that absence makes the heart grow fonder.

It’s important to remember that the dynamics of every relationship are different and what works for one couple may not be a blanket solution for all. For those ready to brave their last resort, our experienced family lawyers have put together SIX simple guidelines to setting up an effective trial separation;

  1. Identify why the trial separation is necessary and communicate your goals.
  2. Seek support for you and your family:
    • Counsellors and psychologists to work individually or with you as a couple to work on your relationship and help you progress through separation;
    • Programs such a those offered by Relationships Australia:
      • 8 week course – “Building better relationships for couples”; and
      • 6 week course – “Building stronger families”. 
  3. Establish clear rules for:
    • the care of children and their best interests;
    • intimacy (see below. It is hard to see how dating while separated can assist reconciliation and healing);
    • financial matters; and
    • who will remain in the matrimonial home.
  4. Set up a clear structure for communication during the trial separation process.
  5. Set clear expectations about the time frame of the separation – varying time frames could have legal repercussions (read the pros and cons of trial separation to find out the legal implications involved).
  6. Set clear expectations regarding standards of behaviour during this period. As you are still legally married, will you remain faithful to each other during the trial separation?
    • Identify any risks to safety;
    • Obtain preliminary legal advice in relation to property matters and what your rights and entitlements may be if you divorce;
    • Ensure the children are priority number one;
    • Work out if each party needs individual therapy in addition to marriage counselling;
    • Agree how money is managed during this time, or ask your accountant or financial planner to make recommendations.

What if trial separation doesn’t work? The PROS and CONS.

Whilst the method may seem confronting and daunting, trial separations are a valuable tool that a couple can use to improve their relationship, identify issues and re-arrange their pre-existing modus operandi. Whilst the process is sure to tug a few heartstrings, one of the biggest benefits is that you will either save your marriage, or you will opt to divorce knowing that you’ve taken every last step to salvage your marriage.

This however, gives rise to the downside of trial separation…

It is important to note that trial separations are of legal significance because a married couple must be separated for a period of 12 months to be eligible for a divorce in Australia – this is what proves that the relationship has irretrievably broken down.

The period of 12 months can be made of time separated, whether that is living under one roof or apart, but it does not include any time in which the couple has resumed their relationship.

Fortunately, there is an exception. Section 50 of the Family Law Act (Cth) 1975, also allows couples to attempt to save their marriage by resuming cohabitation without having to re-set the 12 month separation clock, as long as co-habitation is for less than three months.

For those considering a trial separation, remember to set a goal to resume the relationship at the end of the trial separation period and set a second goal of making a final decision about divorce before you have been back together for 3 months – so as to not impede any time accrual for a Divorce Application.

This is general information only and does not constitute legal advice. If you would like further information in relation to this matter or other legal matters, please contact HHG Legal Group’s Albany office on 9481 2322.