TGB's family law team provides the answers to five common questions about how to start the separation and divorce process.
TGB’s family law team provides the answers to five common questions about how to start the separation and divorce process.
The prospect of ending a marriage or de-facto relationship is undoubtedly daunting, and the more intermingled your life has become with your partner’s, the harder it is.
As well as having to deal with the inevitable emotional fall out from a relationship breakdown, there are many practical issues that need to be considered.
For those who are considering taking the initial steps towards effecting a separation, I have attempted to answer some common questions that often arise either prior to or shortly after separation.
1. Do we need to formally register the separation?
For family law purposes, no. However, you should make a note as to the actual date that separation occurs as this will be relevant if you wish to apply for a divorce down the track (you need to be separated for at least 12 months) and will also be relevant when determining what post-separation contributions you and your former partner have made to the assets of the relationship when effecting a property settlement.
2. How do we decide who will remain in the former family home?
If you and your partner jointly own or lease the former family home, neither of you is legally required to leave. For practical reasons, many couples decide to “separate under the same roof” for a period of time. That said, it may be untenable for you to continue to live together. If you are considering leaving the home, it would be wise for you to first get legal advice and discuss your long term plans. If you wish to retain the home as part of a property settlement in future, it may not be in your interests to vacate the home and instead you may need to formally apply for “sole use and occupation” of the home through the Courts.
3. Do I need to be divorced before I can do a property settlement?
Certainly not. In fact, once you are divorced you only have 12 months to effect a property settlement so it is wise to formalise your property arrangements first. For de facto couples, you have two years from the date of your separation to effect a property settlement, so again, you should turn your mind to property issues sooner rather than later. Some couples are able resolve their property matters by consent, but for others it is necessary to go to Court and the process is far longer. Quite often there are urgent issues that need to be dealt with immediately following separation. For example, are you concerned that your partner is going to attempt to dispose of a joint asset? Or significantly increase a joint liability? Have you been left without any source of income and denied access to the joint funds of the marriage? It is always a good idea to seek legal advice as soon as possible so that you have a clear understanding of what steps need to be taken on both a long and short term basis.
4. How do we decide where the children will live?
You and your partner may need to have some discussions about the long and short term care arrangements for the children. You need to bear in mind that if the matter were to proceed to Court a Judge would make a decision based on the best interests of the children. You should therefore give careful thought to what arrangements would best suit your children, not you personally. In some matters, a shared care arrangement is appropriate. In others, it is more beneficial for the children to primarily live with one parent and spend time with the other. Each situation is unique. It would be wise to obtain legal advice prior to making any decision with respect to both short and long terms care arrangements as it may be difficult to change the arrangement once it has already been put into place.
5. What if my partner retains the children and won’t return them?
If this circumstance arises, you need to seek legal advice without delay. You may ultimately prejudice your position if you don’t take immediate action.
The issues touched upon above are only the tip of the iceberg; there are many different factors that need to be considered. Separating from your partner can be a traumatic time and it is therefore important that you seek the right advice so that the decisions you make at the time of separation do not prejudice you in the long run.
Tindall Gask Bentley is a leading Australian family law firm with offices in South Australia, Western Australia and Northern Territory.