The end of a relationship, be it a marriage or a de facto relationship, is one of the most stressful and daunting experiences in a person’s lifetime. By the time the decision to separate is made, it is likely that the couple have experienced a high degree of conflict and the level of trust and communication, may have eroded significantly. For these reasons, it is all too common that fear rears its head and uncertainty grows. Not knowing what to do next, is unsettling for most, if not all separating couples.
In the words of Sir Francis Bacon, “Knowledge is Power”. Having the knowledge about what to do next, where to get help and what to expect, will help you navigate the road ahead. The content of this article is intended to provide a starting point for some of the common questions asked about financial separation, once a relationship has broken down.
What do I have to do to separate?
When you decide to separate from your partner, you need to clearly communicate your decision to end the relationship. Separation can occur by one partner making the decision to separate. You do not need the agreement of your partner to separate. Separation is about ending the marriage-like and domestic relationship.
Do I have to move out?
The short answer is no. Although there are circumstances where there is no choice but to move out i.e. you have been served with a Restraining Order or it is untenable to continuing living together, a couple can be separated under the same roof.
It is of course, more clear cut that separation has occurred when one partner moves out of the matrimonial home. If you are in a position where you are separated but still living together, then you need to ensure that you have evidence that you are no longer in a relationship. This evidence can include, but isn’t limited to, having separate sleeping arrangements, not presenting as a couple, being able to show examples of how you are no longer in a marriage or domestic-like relationship and even evidence that you have notified external agencies i.e. Centrelink or Services Australia. The more evidence you have to confirm that separation has occurred, the better.
What if we reconcile for a period?
If you and your spouse reconcile after separating, the period before and after reconciliation will be counted as one continuous period of separation (this still has to be 12 months in total), but this is only if the reconciliation period doesn’t exceed three months.
Why is the evidence of separation important?
The date you and your partner separate is important because it determines when you can apply for a Divorce (in the case of marriages) and also due to time limit periods that apply to making an application for Court Orders to divide the assets and liabilities (commonly referred to as property settlement).
In the case of a marriage, you can only apply for a Divorce if you have been separated for at least 12 months and one day from the date of separation. If all or some of the separation period has occurred under the same roof, then you will need additional evidence for the Court by way of Affidavit to prove that you were separated. This includes affidavit evidence from third parties.
How much time do I have to sort out our property settlement?
If you were married, you do not have to get a divorce first in order to finalise a property settlement. It is quite common that separated couples will attend to sorting out property settlement before applying for a Divorce.
However, if a Divorce Order is made by the Family Court, then this triggers what is referred to as a time limitation period. This means that there is a timeframe by which you have to make an application to the Family Court for Orders concerning property settlement. This time frame is 12 months after the Divorce Order takes effect. The Divorce Order takes effect one month and one day after the Divorce Order is made by the Family Court.
In the case of a de facto relationship, the date of separation triggers the time limitation period, which is 2 years from the date of separation.
It is crucial that you are mindful not to let these time limitation periods expire, because doing so will mean that you will need to seek leave (permission) of the Family Court to apply for property settlement out of time. There are grounds that need to be established for the Court to permit a party to bring an application out of time and there are no guarantees that permission will be granted. If you are still negotiating or are simply running out of time, then you should be obtaining some urgent legal advice about your options.
This time limit applies whether you are starting court proceedings or whether you and your ex-partner have agreed a settlement and want to lodge a Form 11 Application for Consent Orders.
Do I have to get legal advice?
There is no obligation to get legal advice, but doing so will assist you to understand the process of how you can go about sorting out a property settlement. It will also enable you to get advice about matters that require some attention early on. For example, who should pay the mortgage, or what do to if your ex-partner is selling assets without your permission or if your ex-partner has taken money out of your redraw facility. You may also be in the position where you need to discuss parenting arrangements.
Do I have to go to Court to sort our property settlement?
If you and your ex-partner reach an agreement, however that has been achieved, then you should formalise the agreement by lodging a Form 11 Application for Consent Orders in the Family Court of Western Australia. You can familiarise yourself with this form by looking at the Court’s website at www.familycourt.wa.gov.au. The website is also a useful tool for information about a range of family law related matters.
The Form 11 is an extensive document that also requires your agreement to be drafted as proposed Orders in the format of a Minute of Consent Orders. You may find it useful to get some advice about your agreement and either have a solicitor draft the documents for you or at least give you advice and assistance in relation to what you have drafted yourself. The Court can reject the Form 11 if it is not accurate or the Court does not consider your agreement just and equitable.
Reaching an agreement about property settlement can happen in many ways. These include negotiating between yourselves, getting a lawyer to negotiate for you, participating in mediation or even engaging in informal meetings with your-ex partner and/or their solicitor (if they have one).
It is beneficial and more cost effective to try and reach an agreement as proceedings in the Family Court can be lengthy and expensive.
If I want to get legal advice, do I need to prepare for the appointment?
Technically you do not need to prepare for an appointment with a solicitor, however, you are likely to get more out of the appointment if you are able to provide the solicitor with as much detail as possible, such as details about the assets and liabilities and about the contributions made by each of you. Knowing the estimate values of assets and liabilities will be very helpful at the appointment. If you don’t know these details, then the solicitor can advise you on what steps can be taken to obtain this information.
Give me the good news…
Separation is stressful and the period where you are trying to sort out property settlement or parenting arrangements, can be equally as stressful. However, the good news is that the vast majority of separated couples reach an agreement and do not go through a battle in the Family Court. If you find yourself in the Family Court, then rest assured that the statistics tell us that no more than about 5% of litigants go all the way to a trial.
Get advice early to address your concerns and to gain an understanding of what to expect and the ways in which you can achieve a timely resolution, as amicably as possible.
If you are looking for assistance with your family law matter, either prior to or after seperation, please contact admin@lunalegal.com.au or telephone (08) 64014633. We offer free 15 minute consultations and fixed pricing across all of our legal services.