Prepare for Separation
Married and de facto partners almost always have intimately intertwined lives. It is, after all, the essence of these partnerships that a couple builds their lives together as one unit, rather than as two separate people. This is particularly the case when a couple has joint assets and/or share children together. When these relationships come to an end, there can be a huge range of practical implications that need to be considered. While every family law case is different, there are some common matters that a couple can consider when they prepare for separation. This article outlines the plans that de facto and married couples should make before they separate, to reduce the distress, inconvenience and cost involved in transforming a couple into two individuals.
A major consideration for a separating family is where each party will be living and with whom. It is often the case with a separating couple that one partner stays living in the marital home while the other goes to a hotel or short term rental while the finances are sorted out. It should be noted that in Australia, the person who stays in the house does not have an advantage when the ownership of the property is decided. Division of the property is based on a number of factors not influenced by who is living where after the separation.
Some couples choose to stay living together temporarily for convenience or for financial reasons, or for the sake of children. It should be noted that a married couple can choose this route and still satisfy the requirements to live separately for a year prior to applying for divorce by living “separately under one roof”. They will, however, have to submit affidavits with their divorce application evidencing their claim to living separate lives while cohabitating. A couple wishing to prepare for separation in this circumstance should make note of the dates that this occurred and inform family and friends who can then provide third party affidavits to the court corroborating the claim.
One of the most crucial considerations when a couple prepare for separation is the welfare of any children. This includes the children that the couple shares, and children from previous relationships.
When parents live separately, children usually divide their time between their parent’s residences. It is highly recommended that the parties to such a situation draw up a written agreement establishing the agreed parenting plan. The agreement should also set out the type of living conditions that are expected to provide the children with a healthy and stable environment.
The matters to consider in regard to children are:
- Children must be protected from any hostility created by the separation. It is important that both parents set aside their personal differences in regard to the children in order to ensure their emotional and physical security. The courts tend to look unfavourably on parents who put their own interests above protecting their children.
- To ensure the emotional well being of children, they must be allowed to have contact with loved ones, including extended family members and grandparents. It is a good idea to plan for regular visitation with both parents as well as other close family. Everyone should consider the best interest of the child to be the highest priority. The courts do not allow a parent to keep a child away from their other parent when there is no danger of domestic violence.
It is important that the parties collect a comprehensive list of relevant documents (or copies) to prepare for separation. This should be done as early as possible to prevent one party from derailing the process by withholding information. The documents that should be collected include the:
- Marriage certificate
- Prenuptial agreement
- Citizenship papers
- Driver’s licences and identification documents
- Medicare cards
- Bank statements and financial documents
- Leases or mortgage documents on the marital home, and certificates of title
- Lease or mortgage documents on shared property assets
When couples prepare for separation, financial implications are an inescapable consideration. The parties should gather together the financial documentation of the relationship as an important step in the process of separation. The courts will use this information to assess the couple’s asset pool during the property settlement process. The couple should plan to separate their finances by:
- Drawing up a budget to see how the parties can live separately.
- If the financial circumstances are precarious, taking financial advice.
- Undertaking a complete accounting of all of the couple’s finances, both joint and separate, and keeping written records.
- Creating a comprehensive list of the assets of the relationship, with an agreed valuation.
- Considering whether they should close joint bank accounts, cancel joint credit cards and other shared debt.
While it is usually difficult, it is important to keep open lines of communication between parties, particularly when there are children involved. It is also best practice that spouses do not criticise each other in front of children, even when provoked.
It is illegal under the Family Law Act 1975 to publish any identifiable information about a family court proceeding, so parties must not discuss their separation on social media. These posts may be scrutinised during the proceeding not only to assess whether they are breaches of the law, but as evidence in custodial and property disputes.
When a relationship breaks down, careful preparation can lessen the emotional and financial damage to the parties. Engaging a lawyer at the earliest possible stage will help you to prepare for separation, as they can help you to communicate with your former spouse, and advise you on custodial and property matters. If you need more information about how to prepare for separation, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.