Going through a separation from your partner or spouse can be the most stressful and difficult time in a person’s life. We are here to make it as easy as possible by helping you along the way and ensuring that the arrangements for your children are appropriate and your financial future is secure.
Here is our guide as family lawyers to avoiding some of the biggest and most common mistakes that we see:
Seek advice from a specialised family lawyer- early!
We spend a lot of time fixing messes that could have been avoided if the party sought legal advice early on. Ideally, we suggest that people seek advice from an experienced family lawyer prior to separation. During an initial consult we can assist you to make a plan of departure and ensure that your living and financial circumstances are as you want them to be at the time of separation- without anyone else even knowing you have sought legal advice! You can then come back to us for further assistance as required along the way.
Try to think about it like a commercial transaction
“Is this something you are going to be worried about in 2 years’ time?” is a good question to ask yourself. Obviously this is easier said than done, but during a separation you are making lots of big life decisions and it’s important to try and think rationally and commercially. We can assist you in this regard, and spend a lot of time with our clients to decide whether it’s something worth fighting about or whether, from an emotional and commercial perspective, you would be better off cutting your losses.
Don’t rely on an informal agreement
Known as the “kitchen table method”, direct negotiation between you and your ex-partner or spouse is something that we regularly recommend to our clients. This can be a quick, easy and effective way to reach an agreement about your property settlement and/or your arrangements for your children. The catch is that it’s vital, if you do reach an agreement, that you seek legal advice about documenting it. If your property settlement is not documented in the appropriate form, you are at risk of your ex-partner or spouse making a further claim against you in the future. Documenting your property settlement can also provide you with finality in relation to financial settlement and sometimes stamp duty relief on the transfer of real estate and cars. If you don’t formalize the arrangements for your children, you are at risk of your ex-partner or spouse changing them in the future. It’s important to seek advice about the pros and cons of formalizing the arrangement.
Don’t allow an arrangement that is unacceptable to you to remain in place for too long
If something isn’t working, seek advice or do something about it. As a general rule, we say if something isn’t working for a number of weeks you should consider seeking legal advice or doing something to change it. It can be difficult to explain to the Court one year later, if something was so bad, why you left it in place for such a long period of time.
You should seek advice immediately if you or your children are living in an unsafe situation, your ex-partner or spouse is threatening to relocate with or withhold your children from spending time with you, or if your ex-partner or spouse has taken funds from a joint bank account or is refusing to pay their share of a joint liability.
Consider getting a Binding Financial Agreement (or “pre-nup”) when entering into a new relationship
We know it’s probably not what you want to think about right now, however, when entering into a new relationship you should consider seeking advice from us about getting a Binding Financial Agreement with your new partner. Binding Financial Agreements can oust the Court’s jurisdiction to make orders regarding the division of your property (including property purchased in the future), which means you and your partner can decide at the time of entering the agreement how your property will be divided if you separate in the future. Think of it like an insurance policy, which you only need if things go downhill (but you are very grateful for it they do!) Parties to a relationship can enter a Binding Financial Agreement before they enter a de facto relationship, while they are a de facto couple or after they get married. You can seek advice from an experienced family lawyer about the specific terms and conditions.
Article By: Zoe Behrens
Zoe graduated from the University of Technology, Sydney and began her career working at the Administrative Appeals Tribunal and then the ACT Magistrates Court as a Legal Associate. At university her combined Management and Law degrees developed her interest in people and behavioural science- which led her to pursue a career in family law. She is particularly interested in matters involving family violence.