Family Law – Separation Basics

Business – Know the rules
October 14, 2016
Family Law – Times, Dates and Certification
January 29, 2017

Separation refers to the end of a relationship, either marriage or de-facto (including same sex relationships).  It can be an emotional and stressful time for both parties.
There are four phases to Separation:

  1. The decision to end the relationship – The decision may be made by one party, or it may be a mutual decision. Often one person may choose to see a lawyer at this stage, to obtain information about their situation, prior to discussing their decision with their partner.  At this point, the lawyer will usually take instructions, provide advice, and suggest counselling and/or alternative dispute resolution procedures.
  2. The decision to separate physically – During this phase, one party or the other may choose to live physically separate to the other. There are legal and procedural factors to take into account, and a distinct date of separation is necessary. If you have been married for less than 2 years, you should seek legal advice as there are additional requirements to satisfy.  In general, it is a good idea to communicate the physical separation in writing between the parties. This can be by having your lawyer write a formal letter, or can be as informal as sending an email or text.It is possible to physically separate and still reside under the same roof, and if this is what the parties choose there are factors that the Court will consider when determining the date of separation.  Some of those factors include whether you slept in separate beds; whether you were intimate with each other; whether you performed domestic duties such as washing or cooking for each other; whether your finances were separate; whether you socialised separately; and if you told your friends and/or government departments that you had separated.
  3. Emotional separation and moving on – The actual physical separation can be a highly emotional time. Family violence (including emotional and physical, harassment and intimidation) may occur.  This may be because one party may not be expecting the separation and it has come as a shock. Of course, emotional upset is no excuse for violence, and the parties should try to work their way through this time as calmly as possible.  Sometimes it may take a period of time for the parties to work their way through the emotional stress of separation to bring themselves to a point where they can enter into legal negotiations about their property settlement and children’s arrangements.  Lawyers are skilled, experienced and practiced at dealing with these emotional situations, and will be able to guide you, and if necessary can refer you to a counselor.  Communicating via your lawyer may be an effective way of reducing conflict between parties, and should you feel threatened, you do not have to communicate directly with your ex-partner at all.
  4. Legal re-organisation – Once the parties have made the decision that the relationship has ended, and has no possibility of resuming, they should organise their financial affairs, and children’s arrangements so that they can live their lives as separately as possible. Obviously, whilst they have minor children together, they will need to have some limited contact.Legal re-organisation may include entering into a Binding Financial Agreement, or initiating proceedings to divide their property, and entering into a Parenting Plan to make arrangements for the children.  If a couple is married, they must initiate property proceedings within a year of the date of divorce.  If they were in a de-facto relationship, they have two years from the date of separation to initiate proceedings.

If you have any questions, or would like assistance with your family law situation, please do not hesitate to contact us.

Leave a Reply

Your email address will not be published. Required fields are marked *