DO WE NEED TO DO ANYTHING TO BECOME OFFICIALLY SEPARATED?
There are no formal requirements to make separation occur. All that has to happen for separation to take place is that there is communication between the parties that the relationship has ended on a final basis. Once separation occurs, the jurisdiction of the Family Law Act is activated. Since 2009, this also includes de facto and same sex couples.
Do I need to take action by a certain time?
Yes. There are important time limitation periods that must be complied with in family law. Please check our table below and see when you need to have commenced an application by to ensure your rights are protected:
De facto property settlement / maintenance applications – 2 years from the date of separation.
Property settlement following divorce – 12 months from the date of divorce.
Property settlement following divorce – There is no time limit as to when an application for divorce must be brought, although at the time of bringing an application, the parties must have been separated for 12 months.
Spousal maintenance – 12 months from the date of divorce.
WE BROKE UP BUT WE STILL LIVE TOGETHER. DO WE STILL COUNT AS A SEPARATED COUPLE?
It is possible to live together but still be considered as separated. In family law, this is called being ‘separated under the one roof’. This is a perfectly acceptable arrangement, and does not stop you from being able to enter into family law processes. All that needs to be proven is that it has been communicated that the relationship has ended on a final basis.
WE CAN’T AGREE ON ANYTHING IN RELATION TO THE KIDS. WHAT DO WE DO NOW?
If you are unable to reach an agreement, there are a few options available to you:
- Family dispute resolution
If you are unable to reach an agreement, then under the Family Law Act you must attempt family dispute resolution. There are some exceptions to this rule, such as if there are issues of family violence. Family dispute resolution is a form of mediation. It takes place at specialist centres such as Relationships Australia. If you do not wish to engage in the family dispute resolution process at this stage, we are able to assist you in negotiating a parenting settlement. We will do this by writing to your former partner or to their lawyer with your proposal, and negotiate counter offers if necessary. If an agreement is reached, then we are able to draft the necessary paper work to formalise the agreement that is reached.
If family dispute resolution is not successful or is not suitable, then we are able to advise and represent you in the court process to apply for orders to be made in relation to your children.
WE CAN’T REACH AN AGREEMENT AND WE DON’T KNOW WHAT TO DO FROM HERE?
In most cases, couples aren’t able to reach an agreement on their own about what to do with any property that is between them.
If there is no immediate agreement, we can assist you in starting the negotiation process. The negotiation process involves things such as:
- Writing to your former partner with a proposal and negotiating counter offers if necessary.
- Mediation or alternate dispute resolution.
- Round table discussions.
If there is no resolution as a result of negotiating, we can also assist you in taking the matter to court.
WE HAVE A HOUSE TOGETHER, AND I WANT TO KEEP IT. WHAT DO I NEED TO DO?
If you are seeking to keep the former family home, you will usually need to pay the other person to ‘buy them out’. How much you pay them depends on a number of factors, but is usually an amount that is agreed between the parties or ordered by the court.
It is very important to have your finances sorted out before you enter into discussions about buying the other party out. You should make sure that you have approval from your bank to take over the mortgage and pay the other person out. We recommend that you speak to your bank or broker as soon as possible so that you know what your borrowing capacity is.
Do I have to pay my ex maintenance?
Generally, under the Family Law Act, it is more likely that any final property settlement made between parties will not include maintenance provisions. Spousal/partner maintenance is usually only available under special circumstances, and is not something that needs to be paid indefinitely. The kinds of special circumstances that can lead to spousal/partner maintenance are things such as where one party has care of children, where one party has very limited financial resources, or when one party is unable to work due to care of children.
HOW DOES THE FAMILY COURT DIVIDE ASSETS?
The court adopts a four step process in diving matrimonial assets. This includes:
- Identify the net asset pool (assets - liabilities)
- Consider the following contributions:
- Financial contributions
- Non financial contributions
- Contributions to the family welfare including any homemaker or parent contributions
- Effect of any proposed order on the earning capacity of either party
- Consider any other factors such as age, health, earning capacity, responsibility to care and house a child or other party and financial resources and whether one party should receive an adjustment.
- Is the proposed order just and equitable?
If you need advice about this process, you should go expert advice to ensure you protect your entitlements.
What is Spousal Maintenance? Am I entitled to it?
Spousal maintenance is financial support paid by a party to a marriage to their husband or wife (or their former husband or wife) or their previous de facto partner in circumstances where the other party is not able to adequately support themselves.
In assessing whether you are entitled to spousal maintenance, many factors need to be considered such as the age and health of parties, each parties income, property and financial resource, earning capacity and whether the relationship has impacted a parties capacity to earn an income.
You are not entitled to maintenance if you re-marry. If you start a new de facto relationship the court will consider the financial relationship of yourself and your new de facto partner before awarding spousal maintenance.
We got married, but separated just a few months later. Can I still apply for a divorce?
If you have been married for less than two years, but have been separated for at least 12 months, you will be able to apply for a divorce, but only if you have a certificate from a counsellor. The certificate will need to be filed with the court at the same time that your application is made.
The court does not require that both parties attended upon the counsellor.
WE SEPARATED 15 MONTHS AGO, BUT THERE WERE A FEW WEEKS WHEN WE GOT BACK TOGETHER TO TRY AND SORT THINGS OUT. CAN WE STILL GET DIVORCED?
It is very common for people to get back together for short periods of time after a separation. If this has happened to you, the separation is ‘paused’, but continues again if you separate once more.
For example, Sarah and John have been separated for two months. They decide to try and work things out. They get back together for six weeks. At the end of the six weeks, they decide to separate once more. At the end of that six weeks, John and Sarah have only been separated for two months. The period of separation continues from there.
We know what arrangements we want to have in place for the kids. How do we get this agreement formalised?
If you and your former partner have reached an agreement, we at Coutts are able to draft the necessary paper work to formalise your agreement for you.
I am a grand parent and I have not been able to spend time with my grandchildren since their parents separated. Am I able to do anything about this?
Under the Family Law Act, grandparents and other people who are important to children are able to make applications to the court under certain circumstances.
We have reached an agreement about what to do with the property. What do we do now?
If you have reached agreement on your own, then we are able to help you draft the necessary papers to formalise the agreement. In these cases, only one of you will need to see us.
What kinds of things are considered in property settlements?
Property settlements cover a number of different kinds of property, including:
- Residential or commercial real estate
- Furniture and household items
- Bank accounts
- Compensation or insurance payments
Property settlements also deal with debts, including:
- Credit card debts
- Personal loans
- Other finance
- Lease agreements
WHAT ABOUT CHILD SUPPORT?
Unless the parties otherwise agree, child support is separate to a property settlement. It is important to remember that both parents have legal obligations to financially support their children.
It is possible to enter into a private child support agreement under certain circumstances. Here at Coutts, we are able to assist in drafting the necessary paper work to enter into a child support agreement.
For more information about child support, we recommend that you contact the Child Support Agency or visit their website.