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Separation Legal Advice

Separation legal advice can be really important when a relationship ends. Formal separation is usually the first stage of a relationship breakdown. If you are thinking about separation, call us for advice on the sensible legal steps you should take to protect your interests. Preferably before you actually separate.

Getting separation legal advice is important whether it’s a marriage or a de-facto relationship. The first step usually involves one person deciding they want the relationship to end. This is often the beginning of a long process and some formal steps should be taken even at this early stage. If you are married (as opposed to being in a de-facto relationship) the exact date a relationship ends effect on the date you can become divorced, and how child-related, and property and financial matters are ultimately dealt with.

Many couples will have a trial separation where they try to work through their problems, whilst others have already decided the relationship is over and simply need to communicate that to the other person. It doesn’t matter what the reason is, and it doesn’t matter who is, or is not, at fault, the law acts in the same way. Family law is “no fault” law.

Separation and Family Law - Never an easy time

The first steps are to document what’s happening, and to know the law and your rights

When we give separation legal advice, the first thing we generally recommend is to formally document the end of the relationship, preferably in writing such as by letter, text message or email to the other party. We will remind you to keep a copy, and to make a note on the document of the place, date and time it was delivered. An email is good because it creates an electronic date and time stamp. If there are reasons why this is not practical, document those reasons and the situation as you see it. If you engage us at this early stage, you can send us emails that record each step you take. Incoming emails automatically have a date stamp from the computer server. Alternatively, you can arrange to write out a statement and have this record formally witnessed, such as by a Justice of the Peace (JP) – noting that a JP only witnesses your signature and does not read the document.

The reason this step is important is that separations in Australia are not formally registered and can therefore be disputed, so the more evidence you collect and retain the better. If you move out of your shared home then documents such as bills and leases showing your new address, are all potential evidence. Even text messages can be saved and used in evidence. Because electronic communication is potential evidence, we strongly advise you keep email, text messages, and social media to a bare minimum and never use it to exhibit anger, frustration, or retaliation – no matter the provocation.  It can all be used as potential evidence against you.

Make sure you have either copies or details of all bank accounts, bank statements, loan agreements, all liabilities and assets (cars, boats, anything with a notable value), lease/rental agreements, information related to businesses, mortgages, investments and superannuation, deeds (arrange property searches if necessary), emails and email account details, social media posts, phone bills, utility bills, your will, and any and all other similar or personal documents no matter how insignificant they may seem right now.

If your partner can access your personal accounts, you need to know what you will have to do to make your personal accounts (bank, phone, laptop, email etc) accessible only by you, and how long that will take. Create new passwords on bank accounts, computer, phone, and others. Make sure joint accounts are ’dual signatory’; change PINs and passwords, lower your daily transaction limits, and think about a lock your credit cards. Keep a diary of everything that happens during this difficult time.

Timing

Keeping records is also important because a lot of issues are dependent on timing. For example, when you can file for divorce (a 12 month separation is required before signing and then filing your application), and whether there is an eligibility for a property settlement (a de-facto relationship must generally have been for 2 years or longer and proceedings can generally not be commenced more than 2 years after separation*).

In the past we acted in a case where one party received a gambling windfall after separation. However the date of separation was disputed and the other party claimed the windfall was a result of family money spent during the relationship. The date of separation can therefore be critical. The same applies to spending on a credit card. Would you like to be liable for your spouse’s extravagant spending on a joint credit card after an informal separation?

We recommend you talk to us so as soon as possible to make sure you get the best advice, take the right steps, and minimise some risks.

*Exceptions can apply.

Can you be separated and still live in the same house?

A lot people don’t know that you can be separated but still live in the same house. This is called “separation under one roof”. To be able to claim this, there are some steps you need to take, and you must be able to prove them. Continuing as usual but just refraining from sexual relations is not enough. Some of the things taken into account when determining the time a separation was in effect include whether you slept in separate rooms, whether you cooked and washed for each other, whether your financial affairs are separated, whether you continue with a sexual relationship, and whether or not you went public with the separation. A finding of separation under one roof will be based on the particular circumstances of each case and a mix of the above factors. Our advice is to get the separation under one roof documented through formal correspondence. The other party does not need to agree with the separation, but you need to make sure your records are accurate and beyond doubt.

Talk to us as soon as possible to make sure you get the best advice. Call for an appointment on 02 6223 2400 or send us an email through our contact page.

For more information visit the Family Court of Australia website.

Same Sex Separation Legal Advice

Australian family law applies to same-sex separation. If you are separating from a same-sex relationship you are entitled to seek property and financial settlements in the same court, through the same processes as people in a heterosexual relationship.  Australian laws also allow a same-sex couple to apply to the Child Support Agency for child support agreements.

We have extensive experience in same-sex couple separation and can advise you on the most efficient way to resolve your joint affairs, no matter how complex. Our advice is that if you are separated, you have thoroughly considered all the circumstances and consequences, and if you do not believe there is any prospect of reconciliation, you should seriously consider winding up your joint affairs. Whilst a sensible period post-separation may help wounds to heal and allow proper reflection, our experience is that the longer you leave it the more painful, complex, and expensive it can get.  If you are planning to move on and to start a new life, perhaps with a new relationship, you need to have your affairs sorted out.

If you need advice then please get in touch.  We offer a free first conference.

The same rules apply

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