Thinking about separating but not sure where to start? Separation can be overwhelming, and it is difficult to know where to begin.
Samantha Sticklan, Accredited Family Law Specialist at Macrossan & Amiet Solicitors outlines her top 10 things to do when separation is on the agenda.
- Give counselling a go
Relationship counselling is a must for anyone considering separation. If such counselling does not resolve your issues, at least it might shed some light on why the breakdown occurred and provide life lessons for future relationships. Your family situation may require counselling for yourself or your children alone or together as a family unit.
- Make a plan for the children
Now that your relationship is over – what are your plans for your children? The law says that the paramount consideration when determining where children should live is that any decision is in the best interests of the children. Normally this means that the living arrangements for children should result in them being able to have a meaningful relationship with both parents. While equal time is not always in the children’s best interests, if there is an absence of domestic violence this should be the first consideration of the parents, though it is not always reasonably practicable to have equal time.
Arrangements should be reached having consideration to the circumstances of each individual family unit.
If an agreement cannot be reached – try bringing in a third party to mediate.
- Gather your financial documents
Under the Family Law Act 1975 any party to a separation is obligated to make full financial disclosure to the other. Having a full and proper understanding of the other party’s financial situation is imperative to ensuring you reach a settlement that you are entitled to. Further, having easy access to your financial documents and disclosing them quickly can assist to resolve matters expediently. The obligation of disclosure continues until the property settlement has been resolved. Documents that you will need include, but are not limited to, bank statements, taxation returns, pay slips, settlement statements from the sale and purchase of property etc.
- Obtain legal advice
Your neighbour is not qualified to give you legal advice, nor is your family or friends unless they are family law solicitors. You need to know where you stand having regard to your circumstances. Getting good legal advice early and throughout a separation can save you thousands of dollars and time.
- Cancel joint credit cards, divide joint bank accounts and change passwords
At separation, you may have access to the other party’s bank accounts or have joint bank accounts. Access to said accounts in unlikely to exist indefinitely and you might consider withdrawing all or some of the funds at separation. Remember that this money will most likely be taken into consideration as part property settlement.
Your other half may also have access to your emails and social media accounts, so you should change the passwords to these accounts.
- Get financial advice/ check your superannuation
In most circumstances your superannuation beneficiary is your spouse. Changes to your superannuation nomination can be done at any time, you do not need to wait until your property settlement has been finalised.
Seek financial advice at the early stages of your separation so that you can understand how to achieve the best outcome for you. For example, it might be the case that fighting to retain the former matrimonial home is not a sound financial decision having regard to all the circumstances.
- Plan where you will live and what possessions you will take
If you cannot stand to live with your partner any longer, and your partner will not vacate the home – you will not lose your rights if you vacate the former marital home.
If you decide to vacate the former matrimonial home, you should do so on the understanding that you will most likely not be allowed back. For this reason, you should take what items you wish to retain from the home with you including items of sentimental value.
If you remain in the home, don’t be afraid to change the locks once the other party has vacated the property, even if the property is in joint names. As the person remaining in the property you have the right to the quite enjoyment of the home without fear that your former partner will come back at any time.
Even if you vacate the home you will remain liable for the mortgage if it is in joint names therefore arrangements will need to be made regarding payments.
- Obtain a new Will and Enduring Power of Attorney
Separation does not change the executor or the beneficiaries in a Will. If you have nominated your spouse/defacto as your executor and you pass away, having separated but not yet divorced, your spouse still remains the executor – this is probably not ideal given that you have separated. If you have listed your spouse/defacto as a beneficiary and you pass away having separated, they may still remain a beneficiary. The same applies for your power of attorney, do you want your former spouse making financial and medical decision for you should you lose capacity? Don’t wait to have these documents updated.
- Advise Centrelink and the child support agency of your living arrangements
If you are entitled to Centrelink benefits, ensure that you advise them of your change in living arrangements as you will be dealt with as a single person following separation. Similarly update the child support agency regarding your living arrangements and the care arrangements for you and your children.
- Look after you!
Separation can be draining, and you need to constantly remind yourself that there is an end game. Surround yourself in supportive people that can help you with a fresh start. Seek third party assistance from community organisations should you feel stressed and lonely.
