Tips from our family lawyer
Written by Brooke Keane
Separating from your partner (married or de facto) is a highly emotional and difficult time. Often people are left feeling bewildered and confused about what they should be doing in this initial period of separation.
This article provides a list of things you should be thinking about or where to get useful information when you separate.
1. Contact Centrelink to advise them of your changed circumstances. You may be entitled to different benefits and assistance and may, depending upon your circumstances, may be eligible for an concession card.
2. Contact the Child Support Agency to obtain a child support assessment. If you and your ex-partner are amicable or otherwise able to reach an agreement about child support, you do not need to apply for an assessment, however it is a good idea to check out the Child Support Assessment calculator at https://processing.csa.gov.au/estimator/About.aspx . If you and your ex-partner reach an informal agreement without using the Child Support Agency, you should make sure all payments are made electronically so you can prove the payments that have been made if your informal agreement falls apart.
3. Change all your passwords for banking, email accounts and social media and any other online accounts that contain your personal information. Make sure access to these accounts from any jointly accessed devices (computers, phones, and tablets) is removed. If you cannot be certain that access to email accounts has been removed from shared devices, you should set up new email accounts.
4. If you have joint accounts including savings, credit cards and mortgages/loans, it is a good idea to open up a new account for your income to go into and to put restrictions in place on any joint accounts so funds cannot be withdrawn or joint debts increased without your joint consent. If you both agree to divide money in a joint bank account you should make sure that you have records to show where those funds went and how they were used.
5. If you are moving out of the family home, redirect all your personal mail to your new address or a PO Box and then make sure you update your address. If you have safety concerns about your ex-partner finding out your new address, a PO Box for your mail may provide additional security from your address being revealed.
6. Understand that it is normal to struggle emotionally when your marriage or de facto relationship breaks down. There are a range of services available to help you through this often traumatic period. A good first step is to visit your GP and ask about obtaining a Mental Health Care plan. This will enable you to receive a number of Medicare subsidised sessions with a psychologist. Children also often struggle with, what can seem to them, to be a sudden upheaval of their lives. Many schools offer the services of a counsellor. It may be worth contacting your children’s school to arrange for your child/children to have access to the counsellor. You can also ask your GP for a mental health care plan for your children so they can see a child psychologist at a Medicare subsidised rate.
If you have experienced domestic violence or abuse, it may be better for you to obtain counselling services from a psychologist/counsellor who has specific training in domestic violence.
7. Make a list of all the assets and liabilities you and your ex-partner each have. Try to find documents/records to show what those assets and liabilities are and their current values. For real property (homes/investment properties), a good starting point is to obtain a few market appraisals from local real estate agents. These are often free. Make sure you take this information to your Solicitor when you seek out some initial advice.
8. Many people are able to reach an agreement about how to divide their assets and liabilities and the care arrangements for their children without the need to go to Court or for Solicitors to be involved in the negotiation process. It is important that you know your rights as set out in the Family Law Act before reaching an agreement. You should get legal advice from a Solicitor experience in Family Law before commencing negotiations with your ex-spouse. If you manage to reach an agreement you will need to formalise that agreement (particularly as it relates to property) in binding consent orders or Financial Agreement. You should seek legal advice as to how to formalise any agreement to protect you from future claims and to provide you with certainty for the future.
9. Terminology. A divorce is the termination of the marriage. In Australia the property settlement is separate to the divorce. They involve separate court applications. You can have a property settlement without formally getting divorced and you can obtain your divorce without having sorted out the division of your assets and liabilities (property settlement)
10. Be aware of time limits. A married spouse is able to apply for a divorce (so they are no longer married and able to remarry) 12 months after the date of final separation. Several months can pass between filing an application for divorce and the divorce becoming final.
Legally married spouses have 12 months from the date of divorce (not separation) to apply to the Family Law Courts for a property settlement.
De facto spouses have 2 years from the date of final separation to apply to the Family Law Courts for a property settlement.