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I'm Thinking of Separating... What Should I Do?

Broken love heart

The end of a marriage or de facto relationship can be an emotional, draining, and upsetting experience.

Generally, there are common paths to finding a resolution: a cooperative and mutually negotiated approach with your ex-partner, engaging in mediation, or pursuing legal action.

From a practical standpoint, you should always consider seeking independent legal guidance as soon as possible to ensure you (and your lawyer) can determine and understand what your rights are obligations are, and to find a realistic path forward.

Obtaining legal advice before separating is always advantageous, and ensures that nothing is left unaccounted for, and that any agreement reached has proper terms in accordance with the necessary legal requirements.

Whilst separations are always unique, here are some common questions we are asked in initial consultations that you should consider.

1. Do I need to go to court?

Whether you agree, partially agree or don't agree at all, where is safe and practical to do so, you can always take ownership of any dispute. You can mediate and negotiation at any stage, and as often as needed.

For this reason, most people will not need to go to court to make arrangements and come to any agreement for their children, dividing property and other assets.

Going to court can be expensive, time consuming and stressful, and you may not get the result you are seeking.

2. What happens to the family home?

This will ultimately depend on your unique circumstances, but typically one individual will relocate from the family residence.

In more complex situations, where no agreement can be reached without court proceedings, the property may be sold and any monies disbursed to the parties in accordance with a court order.

If you are the primary caregiver for the children, it is generally recommend you consider remaining in the property to avoid unnecessary stress to any children that may arise from moving house and their belongings.

For some families, it may be unsafe to resolve disputes without going to court and obtaining a court order.

3. Do I need to take personal items?

When leaving a family home, it's important to recognise that a return may not be likely.

It is essential to gather all necessary items, such as your own clothes, jewellery, sentimental possessions, and any furniture items that you individually own. This approach will save both time and money in the future, and can eliminate the need to negotiate with your partner for the return of your personal belongings.

In situations where safety concerns prompt you to leave the family home with children, we strongly recommend taking all essential items, including school uniforms, books, electronics, clothing, toiletries, medication, and toys.

For valuable possessions like paintings or antique collections owned jointly, take photographs for accurate records.

4. Do you have any legal agreements?

Understanding the financial aspects of your relationship is important, especially since you may be involved in negotiating a property settlement with your partner at a later stage.

Ensure you gather essential documents like government certificates, bank statements, pay slips, tax returns, and superannuation statements. Fortunately, may of these documents can now be stored and accessed electronically from your service provider, but you should always have copies that are readily available.

If you have an existing agreement, such a binding financial agreement (commonly referred to a 'pre-nup'), ensure you hold copies of these documents to assist in later stages.

5. Do you have a joint bank account?

It is common for couples to share bank accounts or credit cards. It's important to inform the bank about your separation and consistently monitor joint bank balances and mortgage accounts and activities if applicable.

If there are concerns about your partner potentially withdrawing funds without your consent, you should contact the bank and request the implementation of dual signatures for any withdrawals.

We always recommend speaking with a lawyer before moving any funds, to ensure that what you intend to do is appropriate for your circumstances.

6. Are your digital accounts secure?

To ensure privacy and prevent your personal funds being withdrawn, you should consider whether you need to change your email, internet and mobile banking passwords. This is particularly important if your situation is hostile, unsafe or if there is an imminent threat of litigation.

7. Should I change my Will?

A separation does not immediately revoke a Will, Power of Attorney or other estate document. For many people, this may mean that your former spouse will still be a nominated executor or beneficiary, or have particular powers for your health and financial decisions. As soon as possible after separation, you should execute new estate planning documents to ensure they reflect your current situation, and fulfil your specific wishes.

You should also review any nominations, whether binding or non-binding, regarding your superannuation and life insurance.

8. How should I communicate with my ex-partner?

First and foremost, remain respectful, courteous and civil. In our modern world, electronic communications such as texts, emails, social media messengers (Facebook, WhatsApp, Instagram etc.) can be used as evidence.

If you don't want your ex-partner or their lawyer using any communication as evidence in a court proceeding, do not send it.

Engaging a reputable lawyer can assist immensely in this area; it ensures communication remains professional and in your best interests, and avoids additional stress for you by trying to navigate this alone.

We understand that families come in all shapes and sizes. For whatever reason, we're here to help you navigate the complex and stressful period of a relationship breakdown. From divorce to domestic violence, parenting arrangements to property matters, child support to consent orders, and everything in-between, we're here to help.

With over 40 years of local experience, our goal is to work with you to achieve the best outcome. This involves understanding your unique situation, giving comprehensive advice, and providing appropriate solutions as to how best to move forward.

We offer a free 30 minute consultation for many family law matters. Contact us today or schedule an appointment online, so you can have peace of mind moving forward.


Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.

RHC Solicitors ©


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