Five Things to Consider when Contemplating Separation

By Marisa Stranges, Lawyer

Following the breakdown of your relationship, whether marital, de facto or same sex, can be a very distressing and highly emotional time. You may find yourself having to contemplate issues relating to children, finances and property caused by the change in your circumstances.

Dealing with both important and practical issues can seem overwhelming and sometimes, never ending. It is important to develop a list and an action plan. Here is a list of things to consider when separating:

• Make a note of your separation date. The separation date is when one party communicates to the other that they regard the relationship as at an end. There does not need to be consensus between the parties. It is sufficient if one party is of the view that the relationship is over and communicates that intention to the other party. Separation can also occur under the one roof. The separation date is relevant when applying for a divorce, as twelve months separation is a prerequisite. The separation date may also be relevant to your property settlement, including whether contributions were made by either you or your former partner/spouse before or after separation.
• Joint bank accounts. If you have joint bank accounts, you may want to prevent joint funds being spent by your former partner/spouse. You may consider applying a joint signatory requirement on the joint account/s. This means both account holders must approve any transaction. Other options including freezing the account/s.
• Access to financial and legal documents/records. Establishing a chronology and history of financial contributions to the assets and liabilities of the relationship is very important, together with ensuring access to financial documents which prove any contributions. It may save a lot of time and money if you keep a detailed record, as well as original or copies of relevant financial documents (i.e. your marriage certificate, taxation returns, settlement statements on the sale and purchase of property, bank statements and the like).
• Superannuation. You should consider the beneficiaries named on your superannuation policy, also known as a Binding Death Nomination. Your former partner/spouse may be your nominated beneficiary. Following separation, you may no longer wish for this to be the case. You may prefer to pass these benefits to others, for example your children. It is important to update your Binding Death Nomination as required and also to understand what type of superannuation fund you hold and to obtain both legal and accounting advice in relation to these matters.
• Parenting Arrangements. The law says that the best interests of the children must be paramount at all times, including in the event of separation. This is generally served by ensuring that the children maintain close and meaningful relationships with both parents after separation. Exceptions can apply in certain circumstances, including domestic violence. The Family Courts do not usually condone the splitting of siblings between homes, so it is best if a decision can be made early on regarding the parent with whom the children are to primarily reside. Alternatively, the parties can reach an agreement in relation to parenting arrangements (provided it is practical and in the children’s best interests). It is preferable that such agreements are in writing and approved by the Court to ensure enforceability.

In short, there are multiple issues to contemplate when separating. These issues will depend entirely on the individual’s circumstances. On many occasions, we meet with clients prior to a separation being announced and implemented, in order to discuss practical aspects and legal ramifications of any separation. MST Lawyers can provide specialist legal advice as to the various options available to you in your personal circumstances.

At MST Lawyers our Family Law team is offering a complimentary 45-minute initial consultation. If you would like advice or assistance in taking the next step, please do not hesitate to contact our Family Law team on +61 3 8540 0200 to find out how we can help.