The thought of separating from your partner, whether married or de facto, can often be overwhelming. Whilst there are the emotions to overcome, there are also a number of family law aspects of separation that need to be considered.
If you are considering separating from your partner, it is often beneficial to seek legal advice prior to the separation. This can assist you with knowing what is required before the separation occurs.
Otherwise, it is important for both married couples and de facto couples to seek legal advice as soon as possible after separation.
Where parties have children, legal advice can assist you in working through the various scenarios that might be best for your family, depending on the age, development and individual circumstances of your child or children.
There is no one solution which fits all for each family and there are a number of ways that children can have a relationship with both parents. By seeking legal advice as quickly as possible, this should assist in putting arrangements in place for your children as smoothly as possible.
After separation, there are several matters with a financial impact to consider:
- Who will remain living in the family home?
- What arrangements are in place for the party who is leaving the home? Is a rental appropriate? Living with another family member? How will this be funded?
- Do you need to ensure that neither party can withdraw large sums of money without the other party’s consent?
- What is the structure of your superannuation?
- How will the costs of living be paid after the separation?
- Who will pay for the childrens’ costs, including school fees and extra-curricular activities?
- What liability of either party is there to joint debts (and the repayments of these)?
The above questions are just a snapshot of the considerations required at the time of separation. An experienced family lawyer should be able to assist you in putting a plan in place to provide some certainty as to your personal financial landscape as you move into this new stage.
Married couples and separation
In circumstances where there is a breakdown of a marriage, there is a number of legal matters that need to be addressed:
- Property Settlement
- Spousal maintenance
- The living arrangements for the children
- Child support
Initiating divorce proceedings alone does not address the remainder of the issues.
De facto partners and separating
Save for de facto couples not needing to go through an application for divorce, the legal considerations of a property settlement, child support and maintenance are the same.
De facto partners, subject to certain qualifying provisions, can now initiate proceedings for property settlement under the provisions of the Family Law Act 1975 (or Family Court Act 2004 in Western Australia) and in many circumstances are treated much the same as married couples.
It is important to note, in Western Australia, de facto couples can still not split their superannuation (current as at November 2019).
Considerations about your Will when separating from your spouse
Upon separation from your spouse consideration must be given as to whether you need to change your existing Will or have one prepared in circumstances where you do not already have a Will.
There are numerous reasons why it may be critical for you to change your Will upon separation, or have one made:
- If you do not have a Will, the distribution of your estate may not be what you intended. If you die without a Will, spouses and children will share in the estate of a deceased person. If any beneficiaries are under the age of 18 years, the Public Trustee has a duty to maintain the financial interest of that child.
- Following divorce, any existing Will made by you prior to the dissolution of your marriage will be void in respect of any gifts left to your spouse, as will the appointment of your spouse as an Executor of your Will.
- Often couples will own various items such as real property (a house), motor vehicles and bank accounts as joint tenants. In the event that either party should die, all jointly owned assets will automatically pass to the survivor.
- In the event you die before issuing proceedings for property settlement in the Family Court of Australia, the administrators of your estate will be precluded from issuing proceedings on your behalf. This means that your estate will be left with only those items owned solely by you as at the date of your death.
At Meillon & Bright we can assist you with both legal matters arising from separation and the division of assets, as well as drafting your new Will.