Bowen Buchbinder Vilensky

You Have Decided to Separate… Now What?

By Adam Spashett, Senior Associate at Bowen Buchbinder Vilensky Lawyers

12 February 2016

Separation and divorce can and do occur at any time.  No matter what your circumstances are, whether you and your partner have mutually agreed, or if you have seen it coming for a long while, or it was completely ‘out of the blue’, separation will be one of the most difficult times of your life.

What makes separation even more difficult is when you and your partner have joint assets and/or children.

When you have decided to separate or divorce, getting confidential legal advice from an experienced family lawyer, and from a wills and estate planning lawyer, is unlikely to be at the forefront of your mind.  However, engaging a family lawyer on a confidential basis will ensure that you are provided with specific legal advice tailored to your situation.  It does not mean that you are committed to anything, and in most cases you will walk away with knowledge and understanding of what is ahead of you, and what your entitlements may be.

Each and every case is unique.  There will be cases where the parties will amicably negotiate and reach agreement, those where only a partial agreement will be achieved, and those where there are pressing or urgent issues which require immediate intervention.  Parties with complex financial arrangements will likely require additional services to assist them in achieving a resolution.

Outlined below are some things to keep in mind:

Financial Matters/Property Settlement

In regards to joint bank or share trading accounts, if things are amicable, perhaps a broad discussion about usage will suffice.  If there are accounts with significant funds, consider changing them so that both signatures are required to transact. Most banks will assist parties to make such changes.  Where you are both working, consider having your salaries paid into separate accounts in your sole name as a first step towards practical financial independence.

Cancel secondary credit cards if you suspect a vindictive shopping spree may be on the horizon. If possible, give some notice beforehand to limit the potential conflict likely to be caused.

If you are living under the same roof for the time being, think about setting up a PO Box for your personal mail.  If you’re moving out, be sure to redirect all of your mail and advise your lawyers, accountants, or other service provider to change your mailing address.

If you have a prolific online presence, be sure to change all of your passwords for everything, even if you think your significant other doesn’t know them.  Some of my clients will now set up a separate email address following separation.  It is wise to change all internet banking and other passwords, and ensure that any electronic devices that might synchronise passwords, emails, text messages, etc, cannot be accessed by your former partner.  The same goes with pin numbers for bank and credit cards.

Get some advice from a wills and estate planning lawyer.  Changing your Will to reflect your new circumstances is important. Keep in mind that unless the will is drafted ‘in contemplation of a divorce’, a divorce order will invalidate it.

Consider contacting your superannuation fund to change the nominated beneficiary. Whilst superannuation does form part of the estate (unless there is a Binding Death Benefit Nomination), the Trustee of the fund does not have to pay the funds to your estate in the absence of a Binding Death Benefit Nomination.  Similarly with Life Insurance and nominated beneficiaries.

Once your financial and property division has been agreed, be sure to have it properly documented by an experienced family lawyer.  This will ensure that all loose ends are tied up, and that consideration has been given to all aspects of your respective financial positions.  You agreement can be documented by way of a Form 11 Application for Consent Orders in the Family Court, or a Binding Financial Agreement.  Your family lawyer will advise you on the benefits and detriments of both options.

Parenting Matters

It is in everyone’s best interests, including, most importantly, the children, to present a united front to the children, being supportive of them and each other as parents whilst you guide them through this big change in their lives.

Creating or enabling conflict and exposing the children to such behaviour is looked on poorly by the Family Court.

If you parenting matters look as though they might become contentious, try to keep your own record of what arrangements have been put in place, and your discussions with your former partner.  Saving your emails and text message conversation is also handy.  In stressful times such as these, memory often falters, so records of your arrangements, including who the children spend time with and for how long, etc, may assist the parties in the future.

Try to agree with your partner on a routine, and then stick to it.  If the arrangements for the children are agreed, be sure to write them down clearly and concisely, so everyone is on the same page.

There are numerous private and government agencies who provide counselling, mediation services, and other helpful programs.  These service providers can help you negotiate with your former partner, and enter into a parenting plan.

You should also seriously consider documenting your agreement by way of a Form 11 Application for Consent Orders, which provide much greater certainty to the arrangements for the children.

Our Family Law team is happy to assist with any queries you may have.

Leave a comment

If you’d like to receive more blogs on this and related legal matters, please click the red ‘Subscribe’ button at the top, left hand of your page now.

Leave a Reply

Please read the TERMS AND CONDITIONS before posting.

Current day month ye@r *