Summary of Episode 2: Separation

Hello, and welcome to our Family Law Q&A series with Natalie Fielding, Accredited Family Law Specialist at Lewis Holdway Lawyers.

How can you protect yourself, your children and your property?

Separation is a very emotionally bruising time in someone’s life and, for some people, the separation can come as a shock. If your partner walks out suddenly, what steps do you recommend taking as soon as possible to protect yourself, and any children and property entwined in the relationship?

First, it doesn’t matter whether you’re the person who’s left the relationship, or you were the person who was left, separation is really hard for everybody - the both of you, your children, and your family and friends. There aren't many people who would have entered a relationship thinking this was going to happen to them.

We recommend that you find a family member or friend who can walk this journey with you. Everyone needs somebody like that in their life during this season, no matter who they are.

You need to make an appointment with a Lawyer. It’s one of those times in your life where you really need to get some good advice to ensure that you provide for yourself, both now and in the future.

In preparation for your time with your Lawyer, start compiling your financial records - things like your bank statements, mortgage statements and loan statements. Also, start putting together a list of the details of your relationship, like your dates of birth; when you started living together; when you got married; the dates your children were born; when you bought a house together – whatever is unique to your relationship. Write it down in a chronology and take it to your appointment with your Lawyer.

Look at getting a separate bank account and organise to have your salary paid into it. You might have a mortgage with your partner and that’s still going to need to be paid (we can talk about how that might work) but separating your finances is good so that you’ve got some of your own money at this time.

If you have a mortgage with a redraw facility or a line of credit, place a freeze over that with your bank. It can be a little bit challenging at times to get them to do that without the other person’s consent. If that’s the case, come and talk to us and we’ll tell you how you can go about it.

Finally, if you have children, you need to sit down with your partner to work out how you’re going to tell them what is happening. It’s better that you do it together, rather than just one of you doing it. You need to work out a suitable arrangement for the children so you can both still see them.

If someone is considering leaving a relationship, what are the most important things to bear in mind from a legal perspective?

It is important to get your financial documents together and start making lists of financial assets and liabilities belonging to you, and to your spouse, and together. This includes everything from your family home, investments, bank accounts, superannuation, shares, company interests, any windfalls and inheritances and even the value of your jewellery.

Make a copy of all the financial documents that you find. We often find documents "disappear" once the separation becomes official. Begin making the chronology of the relationship mentioned before.

Make sure you start spending time with your kids by yourself, independent of your partner, and keep a diary of the times that you spend with them.

What about couples that separate but elect, for a variety of reasons, to stay living under the same roof for a time? What are the legal implications there, especially if the separation leads to a formal divorce down the track?

Often, it’s beneficial to stay living in the same house as it reduces the expense of setting up a new house whilst you’re working out your separation. However, the reality is you separated from this person for a reason. You probably don’t want to be in the house with them.

If there’s family violence, of course we are not going to tell you to stay in the house. But if you can stay in the house as long as possible, that’s probably most beneficial to you. The reason for that is often, practically speaking, if you leave and the other person remains living in the house, it may be hard getting them out of the house in the future. If you need to have the property listed for sale, your partner might try and delay the sale, or leave the house messy when you’ve got prospective buyers coming to inspect it. Alternatively, if you decide to keep the house, you might find it really hard to get them out of the house. We've had cases where we’ve had to go to Court and get a warrant to have the sheriffs forcibly remove someone because they’ve refused to go. That's messy. It’s also expensive, both from a financial and emotional perspective.

If you are separated and living under the same roof, it does complicate your Divorce process. Divorce is different from separation. Property settlement can occur at any stage from the time you separate but you cannot be divorced in Australia until you’ve been separated for a period of one year and one day. If you’ve lived under the same roof in that period, you will need to file two Affidavits at Court – one from you and one from a family member or a friend - stating that you’ve lived together under the same roof but you’re separated and you’ve had separate lives. This is quite simple to do and we can help you to do it, but that’s something some people will need to consider when they’re deciding whether they’re going to live under the same roof while separated.

Any advice given in this Q&A series is of a general nature only and is not intended to represent or replace legal advice tailored to your personal circumstances.

If you want to seek advice about your situation, call Lewis Holdway Lawyers on 03 9629 9629.