Sometimes separation comes as shock, sometimes it doesn’t! Whether a relationship ends abruptly, or occurs after years of growing apart, most people don’t appreciate how intertwined their lives have become until they separate.
Once the decision has been made that the relationship is irreconcilable, there are several significant decisions that need to be made. The complexity of these decisions will depend on the length of the relationship, the extent of the asset pool and of course, whether children are involved.
The first major decision you will be faced with post separation is who is going to live where, and with whom? For separating couples with children, this will mean deciding who will be the primary caregiver of the children and how much time the children spend with the non-resident parent.
The next decision you will have to make is, who is going to move out. In today’s economic climate, many families find that they simply cannot afford to live under separate roofs immediately after separation. This can have ramifications later on where one party wishes to file for divorce. Under the Family Law Act, parties must be separated for 12 months and one day before being eligible to make an application for divorce. If there has been a period of cohabitation under the same roof following separation, it will be important to be able to satisfy the court that although the parties were living under the same roof, they were leading separate lives.
Without a doubt, the most critical of decisions to be made post separation will be the needs of the children. Paramount consideration should be to ensure that the children are sheltered from any ill-feelings generated by the separation. It is important to remember that children are dependent on both parents for physical and emotional security and it is the parent’s responsibility that they place the needs of the child above their own.
Under the Family Law Act there is a presumption that it is in the best interests of a child to have a meaningful relationship with both parents. It is therefore important to ensure that whatever arrangements are made post separation, that the children are able to spend time and communicate with the non-resident parent on a regular basis.
Whilst there is no legal requirement for a parenting arrangement to be formalized by the courts, parenting orders made by the court offer protection in that they are both legally binding and enforceable.
In circumstances where separation has occurred because of domestic violence, substance or alcohol abuse, the children’s safety should be the paramount consideration. If you feel that your former partner poses a risk to the safety of the children, it is important to obtain legal advice as soon as practicable.
The topic of finances is probably one of the biggest causes of marital/relationship arguments. Regardless of the financial stressors felt during the period of the relationship, separation will inevitably place a significant burden on the party’s finances and this is often not something either party is prepared for.
Something that the parties will need to consider is, how they are going to sever their financial relationship and divide the assets of the relationship. This process may be reasonably straightforward if the parties have previously entered into a Binding Financial Agreement, provided that there has not been a significant change in circumstances since that document was signed.
Whether the parties have entered into a Binding Financial Agreement or not, it will be important to obtain legal advice at the earliest opportunity. The Family Law Act places limitation on the time frame in which you have to seek a property settlement. For those in de-facto relationships, the time limit expires 2 years after the date of separation. Whereas for married couples, the time limitation expires 12 months after the date of divorce.
Before Seeing a Lawyer
Whether you are seeking legal advice to obtain a divorce, a property settlement or for children’s matters, or a combination of these, it will be important to make sure you have all relevant documents ready. These include:
Passports (particularly the children’s passports);
Your marriage certificate;
Details of all accounts either held jointly or in sole names;
Mortgage documents or Certificates of Title to the family home or any other real estate;
Copy of any Binding Financial Agreement;
Details of the parties’ superannuation interests;
Financial documents such as tax returns and payslips; and
A list of all of the relationship assets and liabilities.
It is not uncommon post separation for one party to command control over financial documents and refuse to provide them. For this reason, it is important to start collecting all of these important documents as soon as possible. In these circumstances, where original documents are not available, photocopies should be obtained where possible.
Separation is undoubtedly emotionally exhausting as it requires making complex life changing decisions in a short space of time. If you need advice about how to deal with issues associated with separation, contact Williams Barristers & Solicitors today.