Separating or ending a marriage or de facto relationship can be an incredibly difficult period for all concerned. Though for some, it can be quite the contrary. Wherever you are on the journey, you need to know some legal basics. At Mediations Australia, we’re early-resolution focussed. We believe that family law matters should, unless absolutely necessary, be resolved as quickly as possible, with the least amount of expense. That’s why we have a team of mediators, family lawyers, and arbitrators to help you resolve your dispute promptly.
At this time, there typically is an avalanche of feelings. Emotions may be running high, and the loss that comes with separation can be terrible and difficult to deal with. You may be in shock, denial, anger, depression, or sadness as a result. Or perhaps you’ve reached the point of acceptance and are just looking forwards to moving on with your life.
Whatever you’re going through, it’s critical to depend on your friends and family for support and to communicate your thoughts. Even professional assistance may be necessary to aid you and your children in moving forwards and coping with the shift.
The meaning of the term “separation” in a legal sense means, being separated from your spouse or de facto partner. This typically implies that you or your spouse or de facto partner are no longer living together. Living apart from your partner but still living under the same roof is possible, however, it may be more difficult to show.
The date of the separation is critical because it will be required when you get to a point of taking the next legal steps on the journey.
You may keep track of the date of separation by doing the following:
- You can confirm the date of separation by communicating it in writing via email or text message and keeping a copy of that communication;
- writing down the date that the separation occurred in your diary and detailing the conversation you had to confirm the date of separation;
- and drafting an agreement that specifies the date of separation and then jointly signing the agreement as confirmation.
The following are the reasons why the date is critical:
- Separation must occur before you can file an application for divorce or for property settlement matters, including spousal maintenance;
- and there are time limitations and implications that apply to applications for divorce (if you are married) and for property settlement matters, including spousal maintenance applications, that begin on the date of separation and run from the date of separation.
Thinking about separation or divorce?
What happens if there is a disagreement over the date of separation?
In some cases, you and your former spouse are unable to reach an agreement on the date of separation. This can cause a delay in the proceedings of your divorce and may have an impact on the distribution of your assets. The value of the net pool, which is the sum of the assets, obligations, and superannuation entitlements held in joint or sole names at the time of separation, may also be affected.
For example, if you were previously in a de facto relationship and you are unable to agree on the date of separation, you may find yourself outside of the following periods established by the Family Law Act 1975.
In order to file an application in the Court, you must do it within two years (that is, you must commence proceedings within two years from the date of separation).
If you want to find out how long it takes to get a divorce, this article is useful.
Is it possible for my ex or de facto partner and me to be “separated within the same roof”?
Being “separated under one roof” refers to the fact that your marriage or de facto relationship has ended, but you and your former spouse or de facto partner continue to live together in the same house as one another.
This can happen for a variety of reasons, including when spouses are awaiting the completion of a financial property settlement that would allow them to move.
Among the evidence that you and your former spouse or de facto partner have genuinely “separated under one roof” will be those of the following items that the Court will consider:
- a change in sleeping arrangements;
- a decrease in joint activities with your former spouse or de facto partner, such as no longer socialising together or attending functions together that you would otherwise have attended;
- a decrease in shared household activities, such as cooking or doing laundry for each other, and eating meals together;
- the division of financial contributions and resources, such as closing joint bank accounts and paying for bills or utilities separately;
- a change in sleeping arrangements.
The communication of the end of the relationship to the other party and the keeping of a record of this communication are extremely important in order to avoid any disputes regarding the date on which the relationship ended. If you have separated under one roof, it is extremely important that you communicate the end of the relationship to the other party and keep a record of this communication in order to avoid any disputes surrounding the date on which the relationship ended.
Need some information that relates to your circumstance?
What procedures must be followed in the event of a divorce?
If you decide to end your relationship with your former partner or de facto partner, there are certain things you should ask yourself. These questions are crucial because they are practical and deal with the emotional well-being of others who are close to you and who may also be touched by your choice to split from your partner.
Additionally, because to the sensitive nature of the separation process, you and your former partner or de facto partner may not be able to reach an agreement on all of the details.
The following are the questions you should ask yourself:
- What will we say to the children when we inform them about the separation?
- We need to figure out how to minimise the impact it has on the children and their housing arrangements, school, and other daily routines, among other things.
- When it comes to how they spend their time, live, and interact, how will we guarantee that the children retain a meaningful bond with each parent?
- When it comes to dealing with the emotional strain of a separation or divorce, what support networks do I and my children need to rely on?
- Is it necessary for me or my children to seek professional help?
- What joint choices may we make (if there is agreement) in respect to property and money concerns, such as how the monies in any joint bank accounts, building society accounts, or credit union accounts will be shared, if there is agreement on this?
- Whether or whether the former family house will be sold, it is unclear who will take up residence there.
- What invoices, rental payments, or mortgage repayments, as well as any other obligations, are still owed, and what plan do you have in place for paying them?
- What will happen to the family’s old house, cars, furniture, and other belongings, and how will they be distributed?
- Is it possible for us to create temporary agreements between us until a thorough resolution of all financial concerns can be reached?
- How can we minimise the potential for conflict while making decisions on these matters?
- How are my former spouse or de facto partner and I going to sustain ourselves and our children in the future?
- What financial assistance do I require from my ex-spouse or de facto partner in the shape of child support or spousal maintenance payments to get by?
Additional considerations may include the following:
- What is the procedure for filing for divorce and when should I do so?
- Is it necessary for me to contemplate going to Court if the situation is hostile or if we are unable to reach an agreement?
- What is the procedure for going to court?
These are very important things to understand. At this point, you should book a free, initial consultation with one of our family lawyers at Mediations Australia.
Book a Free Consultation with a Family Law Expert.
Before you divorce, here are some questions to ask a lawyer, as well as some typical mistakes to avoid.
A divorce, particularly when children and property are involved, can be an emotionally draining event for the parties concerned.
How long will the procedure take, and what will I receive as a result?
There is no one-size-fits-all response to these questions when it comes to family law, despite the fact that they are frequently the first ones asked of family lawyers.
What’s crucial for you to understand is that it may take some time for your separation to come to a satisfactory conclusion. Please understand that if you want your problem to be completed in a week, it will not be. The resolution of certain issues can be completed in a matter of months, while others might take many years to complete. The time and optimum method for you will be determined by the strategy taken by you and your former spouse, as well as your current situation.
However, where things can happen quickly is when there is little dispute between you and your former partner and you’re able to reach an agreement. At this point, it’s highly recommended that you contact one of our team at Mediations Australia in order for the agreement to be finalised and made into what we call, “consent orders” which ensure the agreement is legally-binding.
Why it’s important you act quickly is because in our experience, couples in dispute can come close to agreement, then something flares soon after that results in all bets being off the table.
How much will it set you back?
This will be determined by the amount of work to be performed by family lawyers and how far along in the process your issue has progressed. Mediation can help many couples achieve an agreement, while others will need to take their case all the way through the court system. If one party’s behaviour throughout the negotiation process is not cooperative, the expenses of the negotiation process may rise. It is typical that your fees will be higher if you are required to go to court.
What other resources are available to me?
When working with clients who are going through a difficult or emotional separation, we recommend that they contact with their primary care physician and ask for a reference to a counsellor who is suitably trained to deal with the issues that they are seeking to address. Alternatively, your lawyer is likely to have relationships with certain counsellors who specialise in divorce and separation difficulties and may be able to refer you to someone who meets your needs. This is highly recommended because whilst friends and family can provide great support, it’s likely they will become tired of hearing about your dispute.
If there are concerns of domestic violence involved, you should contact the authorities. DV Connect, on the other hand, is another service that can be of assistance.
What exactly do I need to do at this point?
First and foremost, you must consider where you will reside and, if there are children involved, what your parenting arrangements will be in the future. You must think about how you will obtain finances and begin collecting the documentation that will be required. This can contain documents such as birth certificates for you and your children, passports, and a marriage certificate, among other things. If you do not already have them, you should consider purchasing duplicates.
Also, make a point of gathering any relevant financial papers, such as tax returns, payslips, and bank statements, because the information included in these documents will be required as part of the financial settlement procedure later on. Due to the fact that you are not in possession of these documents, the procedure will be slowed down later on when you really want things to go forwards. So go to work compiling them right now.
At the outset of the separation process, we observe a number of frequent mistakes that people make while they are going through a divorce or separation. It is possible to save time and worry in the long run by taking a deliberate approach to divorce if you are contemplating a separation.
Thinking about separation or divorce?
Mistake number one: Leaving the family home without fully comprehending the ramifications of doing so.
Clients frequently move out of their family home before consulting with a lawyer, without fully comprehending the ramifications of their actions. Property owned jointly with your spouse or individually will be included in the pool of property to be divided, regardless of whether the property is in your joint or separate names.
If you choose to vacate the premises, you may find it difficult to regain access to the premises in the future. In the event that you simply take your personal possessions with you when you move, it may be quite tough to obtain the furniture and other household items that you will want to set up your new home. As a result, while moving out does not impair your rights to the property in terms of the settlement, it may be difficult to re-enter the home on a practical basis.
It is the other person’s responsibility to get the house ready for sale if it is going to be sold and you are moving out before it can be sold. While you can have orders or an agreement that provides a mechanism for what needs to be done in terms of the sale, such as carrying out any necessary works or minor repairs, ensuring that the party who remains in occupation of the property complies with this can be difficult. As a result, the home may not be adequately prepared for sale, which may have an impact on the sale price you are able to obtain.
So determining whether or not to move out is a difficult decision, because there are several complications that arise as a result of individuals living separately under the same roof at the same time. Because it is common for tension to arise when you continue to live with someone after you have separated from them, there are trade-offs to be made in both cases. So it is not necessary to stay in the house at all costs; rather, you must be mindful of the ramifications of leaving the house. It is imperative that your own safety be prioritised while dealing with domestic and family violence; in this situation, leaving is likely to be your most prudent choice of action.
Mistake number two – Not having access to finances
You should think about how your money are organised and how you will pay for your living expenses, particularly if you do not have the financial means to do it on your own. While your lawyer may be able to assist you in obtaining access to funds through spousal maintenance or other interim financial support, this will most likely not happen overnight, in which case you will need to devise a plan to ensure that you can pay for your immediate living expenses, such as rent, groceries, gasoline, and utility bills, as soon as possible.
For example, you might put money away prior to separation, re-enter the employment, investigate your eligibility for Centrelink and child support assistance, borrow money from family members, or even apply for a low-interest credit card to help you get by until your divorce is finalised.
These activities can serve to provide you with a buffer until you have the opportunity to retain the services of an attorney who can assist you in obtaining access to spousal maintenance and reaching a final financial settlement.
Considering a Binding Financial Agreement or Consent Orders?
Mistake number three: denying your children access to your former partner and their family.
The act of leaving the house with children and not informing the other person of your whereabouts and how the children are faring may cause a great deal of tension and stress, and it has the ability to exacerbate the situation fast. When there has been domestic abuse, these acts may be justifiable; nonetheless, it is vital to get legal counsel to determine your legal rights. A refusal to provide access to children in situations where safety is not a concern is not acceptable and may have negative consequences.
Keeping the lines of communication open and trying to retain touch with both parents is the best course of action. It is important to seek counselling or to engage in a dispute resolution process as soon as possible following a divorce to assist you work out at the very least a short-term agreement that prevents the problem from getting unduly worse.
Mistake number four: escalating the issue.
The way you deal with the problem when you initially separate frequently sets the tone for how the rest of the settlement procedure will turn out as a whole. Example: If you take all of the money out of the bank accounts and remove all of the furnishings from your family home, the other person’s reaction is unlikely to be positive or cooperative, and this may really set the tone for how things go ahead and make things more difficult in the long term. As a result, be careful of your activities and weigh the advantages and disadvantages, as well as the potential consequences, before taking action.
However difficult any separation may be, taking a few moments to reflect and plan ahead of time might help you avoid unwanted consequences down the road. If you can maintain your composure in the face of a difficult circumstance, a good resolution for all parties involved is more likely to be found sooner. Additionally, you may enhance the likelihood of avoiding a courtroom confrontation.
Having a clear understanding of the steps you should take to ensure a favourable outcome during a separation is essential. This includes knowing what papers you should obtain and deciding where you will reside from the outset. By consulting with an attorney in the early phases of your separation and being knowledgeable early on, you may be able to avoid making typical mistakes that generate extra stress and tension throughout the process of separation.
Mistake number five: not seeking legal advice
Whether or not you’re able to reach an agreement swiftly on property and parenting issues following separation or you’re entrenched in arguments on such matters with your former spouse, getting legal advice is the best thing you can do. It’s important because if nothing else it will map out the legal terrain ahead so you’re fully aware of your legal responsibilities going forward.
Mistake number six: believing that litigation is the only option
Sure, there are cases, particularly where there is domestic violence where you may have no alternative but to litigate. But if you do have the choice and there is preparedness from your former partner, there are other much mopre effective and cost-efficient options than litigation. Litigation is costly and you ultimately defer decisions that will impact you for a significant part of your life to someone else that knows little about you. Put bluntly, no one is ever happy with the outcome of litigation. Alternatively, many people are happy once the dispute is resolved quickly and they can get back on with their lives without the economic and emotional burden of fighting for years in the family law courts.
What to do now
If what you have read here resonates with you, then we urge you to contact one of our team members at Mediations Australia. You can choose whether or not you wish to have a free consultation with one of our family lawyers or mediators.
What Should You Do Now?
At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne and all other locations in Australia. We also do international family law matters.