Separating from your partner can be a challenging and emotional time. It’s a tough time and a time of uncertainty. Here we answer the top 3 questions you should ask if you are separating from your partner or spouse.
1. Do I need to take steps to ensure the safety of myself and/or my children?
When it comes to separating from your spouse, the safety of yourself and the safety of your children are of paramount importance. It is imperative that you do not put yourself in harm’s way particularly if there are domestic violence issues in your relationship or if you anticipate that your spouse is likely to have a volatile response to the separation.
If you are concerned, it is best to have a clearly thought-out exit plan and inform trusted friends or support persons of your intentions. It may be best to arrange alternative accommodation and physically leave the family home before you inform your spouse of the separation.
In some circumstances, an Intervention Order against your spouse may be warranted to provide you with protection.
Matters relating to property and finances can always wait until after personal safety issues are addressed.
2. Do I need to take steps to protect my assets/financial position?
If you are leaving the family home, don’t assume that you will be able to return at a later stage to collect belongings. Gather items that are of importance to you before leaving, particularly those that are irreplaceable such as photographs and family heirlooms. The family courts do not use their limited resources on hearing arguments about items that are of insignificant monetary value and so you may not have an avenue to have these items returned to you after separation. It is always wise to take important legal documents and passports with you as well as retrieving these can otherwise be difficult.
With respect to real property, if there is property that you have an interest in that is not registered in your name, it is imperative to speak to a Solicitor as soon as possible and obtain advice about lodging a caveat over the property, which is essentially flagging your interest. Lodging a caveat will prevent your spouse from being able to deal with the property while the caveat remains on the property. In other words, they won’t be able to sell the property or refinance the mortgage or deal with the property in any similar way.
With respect to joint bank accounts, you may wish to contact the bank following separation and ask that no transactions are authorised without your joint signatures.
If you are otherwise concerned about your partner or spouse taking unilateral action or disposing of assets without your consent, you may wish to consider talking to a Solicitor about obtaining an injunction.
3. What do I do if I need access to funds/financial support after separation and my ex won’t agree?
If you have children with your spouse, it will be necessary to apply for child support following separation to determine what you are eligible to receive. You may also be entitled to Centrelink family assistance benefits. You should put your applications in as soon as possible as they can take some time to be processed.
If you are not in receipt of an income other than government benefits and you were previously relying on your partner’s income to support you, you may be entitled to spousal maintenance from them. Applications for spousal maintenance can be made through the family courts in circumstances where one party has a demonstrated need for financial support and the other person has a demonstrated capacity to provide that support. Spousal maintenance can either be by way of periodic payments or a lump sum payment.
You may otherwise wish to consider making an application to the Court for a partial property settlement if there are funds available as part of your joint asset pool or if there is an asset that can be sold in order to raise funds.