Do you have a friend or relative who has just separated? If so, the information below should help.
What is separation?
Separation means the bringing to an end of a marriage or de facto relationship (which also includes same sex couples). The separation date is when you finally decided the relationship was over and you communicated this to your partner, even if you are still living under the one roof.
The separation date is a fact which must be proven if it is disputed by the other party at a later time, and is relevant for the purposes of an application for divorce and your property settlement. You must be separated for a period of 12 months before you can file an application for divorce (this can include a period of separation under the one roof).
Therefore, it is a good idea to confirm the separation in writing, even if this is via text message or email that can be saved, at or shortly after the time of separation.
What if you still live together?
Separation can take place even though the parties live under the one roof and it can also be a gradual process. In these circumstances, the Court will need to examine a number of factors to determine when, and if, a separation has taken place. Those factors can include whether the parties:
- Slept in separate rooms or together after the alleged date of separation;
- Performed domestic duties such as cooking and washing for each other after the alleged date of separation;
- Separated their financial affairs to any extent after the date of separation;
- Lodged or signed any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single person, as opposed to a person in a relationship;
- Continued to be intimate after the date of alleged separation; and
- Made it publicly known (such as by telling friends and family), that they had separated.
The practical issues
Following separation, you will find yourself having to sort out the issues relating to our children, finances and property caused by the change in your circumstances. At times, the list of things you need to deal with may feel overwhelming, so we have prepared a checklist of some practical things you should consider.
Ten things to consider if a person has just separated:
- Joint bank accounts: You need to consider both parties having access to joint funds and how these will be utilised post separation. You may need to contact your bank or financial institution to stop joint funds being removed from joint accounts or liabilities increased on joint credit cards.
- Mortgage repayments: There are several issues to consider including who will be responsible for the mortgage repayments and outgoings associated with the property. You should consult your solicitor and your bank about these issues.
- Utility bills: Consider in whose name the account is in – this may need to be updated depending on who is staying in the former matrimonial property. If the account is in your name and you are not going to continue to reside at the property, you need to be aware that you may be liable for any accounts issued.
- Electronic information: Consider whether you need to change PIN numbers and passwords to ensure your privacy is protected.
- Mail redirection: If you move out of the former matrimonial property, to ensure you maintain the confidentiality of any mail you receive, you might consider having the Post Office redirect your mail to somewhere more secure.
- Health insurance: You should consider who is responsible for payment of the insurance premium and whether you will stay on the existing account (new accounts may attract waiting periods). You should also consider whose health insurance the children will be covered by and ensure the premiums continue to be paid.
- Financial documents: Make a photocopy all financial documents including bank statements, superannuation statements, loan, credit card and mortgage statements and put them in a secure location.
- Child Support: If you have children, contact the Child Support Agency and find out how much is to be paid or is payable.
- Parenting arrangements: Start a diary which keeps track of time your partner spends with the children and any adverse behaviour he/she displays.
- Children’s school: Ensure the school’s emergency contact details are updated to include both parents’ contact details.
- Power of Attorney & Your Will: If you have a Power of Attorney and Will appointing your partner as attorney and executor, ensure it is revoked, and have a new one drafted.
- Superannuation beneficiary: Consider whether your nominated death beneficiary for your superannuation entitlements is appropriate.
- Seek advice from an experienced Family Lawyer.
If you need more information, or if someone you know needs help, get them to call us to speak to one of our solicitors on a no obligation basis on (02) 8014 5885 or email us email@example.com.