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The Top 10 Things You Need To Know If You Are Separating

Apr 2, 2020

Carr & Co

By Andrea Sassella, Director

1. Australia is a no fault jurisdiction – there is no infidelity uplift!

Whilst infidelity is unfortunately a fairly common occurrence, Australia is a no fault jurisdiction. In simple terms, you do not need a reason to divorce (we leave that to the Americans) and unfortunately (or fortunately, depending which side of the fence you are on), you do not get any extra money if your partner was unfaithful. There are generally lots of issues in a separation and you are better off focusing on those which will assist in the progress of your matter.

2. You must be separated for 12 months before you can divorce

Quickie divorces are not a ‘thing’ in Australia. You must be separated for 12 months before you can apply for a divorce. And that doesn’t mean making an application on the day you separated. If you have not been married for more than 2 years (enter Pamela Anderson and Kim Kardashian), you need to attend counselling with an approved counsellor. If you are unsure about your situation, get some advice. Better safe than still unhappily married!

3. Is your Will still valid?

A divorce order invalidates your Will. If you have separated or are considering a separation, you might not want to leave your assets in the same way as when you were in an in-tact relationship. Also, not all of your assets will pass under your Will. Given your age and the age of your partner this might be a relevant consideration. It’s important not to look at a property settlement in a vacuum but consider all of the potential outcomes and scenarios.

4. Divorce and property settlement are not the same thing

Lots of people assume that a divorce is the same as a division of assets. Divorce legally ends a marriage which enables you to remarry, if you so wish or if you just want to be legally divorced. There is no division of assets discussed in a divorce. The division of assets is your property settlement. It is important to remember that you have 12 months after your divorce order becomes final to commence proceedings for property settlement or to lodge your agreement. Again, this is another situation where if you are unsure, you should get some advice.

5. Getting legal advice does not mean the gloves are off

In fact, getting legal advice early on can help you reach an agreement. Family law is a specialised area. If you have a cavity and need a filing, you go to a dentist. The same should apply to your separation. Get some advice from someone appropriately qualified so you can understand what the issues are, where you stand and how best to achieve an outcome.

6. The asset pool does not fix at separation

It is a common misconception that the asset pool for separated parties is as it was at separation. For example, what I have earned after separation and is in my personal bank account is mine, and none of the other party’s business! Well unfortunately, the Court does not see it that way. The Court takes the asset pool as it finds it when it comes to a trial. If a case does not get to trial and settles beforehand, then unless agreed otherwise, the asset pool will be at the time of the agreement. Sometimes this can work to your advantage and other times it works against you. Either way, it’s a good idea to get some legal advice early on so you know what to expect.

7. There is no starting point of equality

When asked to consider orders for property settlement the Court examines the contributions made by each of the parties. It does not assume that the contributions of the parties are equal. The Court considers the financial, non-financial and contributions as homemaker and/or parent. If one party comes to the relationship with significantly greater assets, there is potential for the Court to decide that on an assessment of all contributions, they are ahead. At the end of the day, the Court must satisfy itself that its assessment is fair having regard to the circumstances of the relationship.

8. Thou with the most documents wins

Parties to financial proceedings have an obligation to provide a full and frank disclosure of their financial situation to the other party. Often separated parties have different recollections of what transpired during their relationship. Who did what. Who paid for that. If you have a document that supports your version of events, your evidence is more likely to be accepted by the Court. If you are contemplating a separation or have recently separated, it’s a good idea to start getting your paperwork together. Your tax returns and bank statements are a good place to start.

9. If you reach an agreement – get it documented!

A negotiated agreement is often the best. However, it’s really important that while everyone is on the same page about what a fair settlement looks like, you get it documented properly. Reflecting your agreement in Court orders means that it is binding and enforceable. And it does not mean that you have to go to Court. You can complete the necessary documentation, get it signed off and send it to the Court. So long as the documents are completed correctly and the Court agrees the outcome is fair, your orders will be made. That’s where we come in, to help you make sure those boxes have been ticked.

10. The general rule is: your bear your own costs

A big question for people considering a separation is how much will it cost me? The general rule in family court proceedings is that each party is to pay their own costs. However, the Court can depart from that rule if the circumstances warrant it. You can also seek orders where the asset pool, the other party or the sale of assets fund your legal fees. If you think one of these situations might apply to you, then come see one of the team and get some advice.
If you would like some further information on your situation or any of the issues raised in this article, contact us or  phone 08 9322 8000.