What steps should you take after deciding to separate?
1. You should make a note of the date you separated from your spouse as this date will be important for your Application for Divorce (for married spouses) and the time limits to commence property settlement proceedings (for defacto couples). It may also be an important date when you are negotiating a settlement.
2. You should collate your relevant financial information such as income tax returns, bank statements, superannuation statements, and any other documents that may be relevant regarding your assets and debts that would assist with your property settlement; and keep a diary of all significant events regarding your children and parenting matters.
3. We would recommend that you obtain advice from a lawyer shortly after your separation so you understand how the law would apply in your particular circumstances to help you have discussions with your former partner directly (if possible) or through family dispute resolution to try and reach an amicable agreement.
It is mandatory to attend family dispute resolution (mediation)?
In most circumstances it is necessary for parents to participate in family dispute resolution to try and reach an agreement about parenting arrangements for their children after they separate, and before they can make an application to the Court in the event they cannot reach an agreement. There are some exceptions to this requirement such as an application needing to be made to the Court in urgent circumstances; where there has been family violence or child abuse; or if it is not practicable to attend for any reason. It may also not be necessary to attend family dispute resolution if you are seeking to enforce a Court Order that was made less than 12 months prior. We can assist you with recommendations to family dispute resolution services, or determine if any of the exemptions apply to you.
It is not necessary for parties to attend family dispute resolution in relation to a property settlement.
We would recommend that you seek advice before attending family dispute resolution. If you are able to reach an agreement at family dispute resolution, we can assist you to formalise any agreement you have reached. It is important to note that any agreement reached at family dispute resolution is not binding until you have either obtained a Consent Order from the Court or entered into a Binding Financial Agreement.
What if we can reach an agreement between ourselves? Do we need a lawyer?
Once parties reach an agreement regarding the division of their property after separation, it is important to have the settlement formalised by either a Court Order or a Binding Financial Agreement.
Sometimes people will simply write up an informal agreement at home and sign it. However, without either a Court Order or Financial Agreement, any agreement you reach will not be binding or enforceable. This means that either party can seek to renegotiate the agreement, or make an application to the Court for a property settlement at a later date. This can lead to the burden of legal costs and the stress of dealing with a Court proceeding for a property settlement, sometimes many years after you separated.
Having an agreement formalised once you reach a settlement is highly recommended and will alleviate any concerns about a settlement being challenged at a later date (other than in exceptional circumstances). It will also give you the comfort of being able to deal with any assets in the knowledge that a settlement with a former spouse has been dealt with.
Arrangements regarding your children do not necessarily need to be by way of a formal binding agreement if both parties can make amicable arrangements for the children. However there will be occasions when having a Court Order regarding the parenting arrangements for your children may be required, or a sensible way of dealing with the arrangements so there is no doubt about when the children will spend time with both of their parents or other significant people in their lives. We would recommend that parties seek advice about these matters.
How will superannuation be dealt with in a settlement?
Superannuation is considered an asset of a relationship and in normal circumstances it will be included in the pool of assets to be divided between the parties at separation. The superannuation is able to be ‘split’ between the parties respective superannuation funds.
It is important to obtain advice about your superannuation and how it may be dealt with as part of a settlement before you finalise an agreement with your former partner.