Relationship Breakdown - What Now?
Do you have a friend or relative who has just separated? Separating from a partner can be a challenging time, particularly if the parties have children or own assets together. Every separation is different and it can be difficult to start the process of sorting through the issues following separation. Listed below is information to assist people with taking the initial steps following separation.
What is meant by separation?
Separation in a legal sense is defined as the bringing to an end the marriage or de facto relationship by one or both of the parties. There is no ability to register a separation in Australia, however, the date of the separation is important.
Regardless of whether you are in a de facto relationship or married, it is a good idea to confirm separation in writing with the other party at or shortly after the time of separation. There are time limits in the Family Law Act that run from the date of separation and it is important to have proof that both parties were aware of the separation on that date to avoid a dispute.
Separation for married couples
You must be separated from your spouse for at least 12 months before you file your Application for Divorce.
There is no minimum period required before you can apply for parenting or property Orders, however, you must file an application for property orders within 12 months of a divorce. If you miss this time limit, you should seek legal advice as there may be other options in certain circumstances.
Separation for de facto couples
Under the Family Law Act, a person is in a de facto relationship with another person, regardless of gender, if they are not legally married to one another, not related and they have a relationship as a couple living together on a genuine domestic basis for a period of 2 years or more.
The Court will only consider property applications following breakdown of a de facto relationship where the relationship was at least 2 years, the parties have a child together, the relationship was registered or where one party has made substantial financial contributions which would result in an injustice if orders were not made.
If you have been in a relationship less than 2 years or have not been living together, you may need to seek legal advice as to whether you are de facto partners as there may still be remedies available to you if you do not fit the definition above.
As with married couples, there is no minimum period before you can apply for parenting or property orders, however, with de facto relationships, you must file an application for property orders within 2 years of the date of separation. If you miss this time limit, you should seek legal advice as there may still be options available in certain circumstances.
What if you still live together?
It is not uncommon for parties to separate and to continue living under the same roof due to financial or parenting arrangements. If you have separated, but continue to live together, you should ensure you have proof of the date of separation.
In order to decide the date of separation, the Court will look at factual matters such as whether the parties:
- Slept in separate rooms or together after the alleged date of separation;
- Performed domestic duties for each other after the alleged date of separation;
- Separated their financial affairs after the date of separation;
- Lodged or signed any documents informing government agencies (such as with Centrelink or the ATO) of the separation;
- Continued to be intimate after the date of alleged separation; and
- Told family and friends that they had separated.
Ten things to consider following a separation
Following separation, most people are understandably concerned with the major issues such as moving, restructuring finances and care arrangements for children. Below are 10 things you might not think about, but which are important following separation:
- Contact your bank or financial institution in writing (by fax or email with your signature) to stop joint funds being removed or liabilities increased.
- Consider if your Will is still appropriate and if not, have a new Will drafted.
- Consider whether your death benefit nomination for your superannuation entitlements is appropriate. Your superannuation may not be covered by your Will and, if so, you may need to deal directly with your superannuation provider.
- If you have a Power of Attorney, ensure it is revoked and have a new one drafted.
- Photocopy all financial documents, both yours and your ex-partner’s, and put them in a secure location (not a home or car).
- If you have children, consider contacting the Child Support Agency to find out how much you should pay or how much your ex-partner is liable to pay you. If you contact the Child Support Agency they will likely remain involved until your children turn 18 so consider a private agreement if the separation is amicable.
- Do title searches on your properties. If your home is not in your name or in joint names, ensure you place caveats over the properties. If your property is held as a joint tenant, sever the joint tenancy.
- If there has been family violence, you may need to seek a Restraining Order. If you have any immediate concerns, contact your local police station.
- Start a diary which keeps track of the time your partner has with the children and any adverse behaviour he/she displays.
- Seek advice from an experienced Family Lawyer.
If you need more information, or if someone you know needs help, get them to call us to speak to one of our solicitors on a no obligation basis on 61 2 9212 1099 or send an email to firstname.lastname@example.org.