Rarely is anyone ever prepared for the end of a marriage or a long term defacto relationship. This is almost as true for the partner that initiates separation, as it is for the partner being left.
Separation and divorce create a challenging time for families and are a major step for everyone involved. It is a time when you need support, guidance and information on the legalities involved within the separation and divorce process. If you’re feeling overwhelmed, you can talk to someone 24/7 – call or online chat with Mens Line 1300789978 or Lifeline 131114
Plans for your children, division of property and financial arrangements all need to be worked out.
The breakdown of your relationship launches you into previously unknown territory. The ending of a marriage and the impending divorce not only causes you a great deal of distress, you will also encounter a lot of information you are not familiar with adding to the pressure you are feeling.
As separation and divorce is an experience that causes major emotional and financial upheaval this can often make it difficult to think clearly and rationally due to the overwhelming impact of this major life event.
If you have separated, separation is inevitable, or it has been forced upon you it is important to consider the practical steps outlined in this article and work towards protecting your emotional and financial wellbeing.
There are some couples that can navigate through this minefield of emotions, financial settlements and child custody arrangements all without legal advise. This amicable arrangement can change though when one partner re-partners or they get ill advice from non professionals, if you feel this could be you we recommend the follow strategies.
Speak with a lawyer
Whether you plan to end your marriage, have been the one to instigate the separation, or it has been initiated by your partner, you should speak with a lawyer as soon as possible. The divorce process, while seemingly straightforward, can involve a number of different complexities which, if you do not adequately protect yourself against them, can be extremely detrimental.
No matter how much you trust or want to trust your former partner it is important to understand that once a marriage ends, regardless of who instigated it, your former partner will generally step into a role focused on protecting their own interests.
Being aware of how the law applies to your situation does not necessarily mean you are embarking on the costly process of litigation. It is about being informed, irrespective of how your matter proceeds. By being informed you will find out what you should and shouldn’t be doing and avoid making costly mistakes that can affect your wellbeing for many years to come.
Even if you and your former partner are able to agree on how you will divide your property and/or the arrangements for your children it is still essential to discuss your situation with a lawyer to ensure that you are aware of your rights and responsibilities and that you are receiving the best outcome possible for you and your family.
It’s important not to take any actions or sign any agreements that can affect your rights before discussing your specific circumstances with a family lawyer.
Engaging a lawyer
One of the dilemmas many people encounter when faced with separation and divorce is finding the right lawyer. You may receive recommendations from various sources and these can be great in finding a competent lawyer; however, keep in mind, even though a particular lawyer may have been right for someone else, this does not necessarily mean their particular style or manner will suit you.
It is important to ensure you engage a lawyer who is right for you.
Not only do you need to consider their professional expertise but the personality match needs to be right as well.
When determining which lawyer is right for you, during the initial meeting consider the lawyer’s style, personality, their overview of your case and the way the lawyer treats you. Sometimes it may be necessary to interview several lawyers before you get a sense of who best suits your needs.
The rest of your life begins here, so it is important to be very sure about who is the best fit for you.
Negotiate or litigate
There are a number of different approaches to resolving family law disputes whether they involve property, children or spousal maintenance. These include:
- Negotiation
- Counselling
- Mediation
- Family dispute resolution (FDR)
- Collaborative process
- Litigation
During your initial meeting with your lawyer discuss the different approaches available. Ask the lawyer what their views on litigation versus these alternative methods are? If you don’t want to battle it out in court you need to ascertain what view the lawyer takes.
Also ask the lawyer what issues in your case could be difficult? (Complicated issues pertaining to business evaluations, searching for sources of income, arrangements for your children, and abuse are just some of the factors that could make a case more difficult to handle);
Living separately under the same roof
Living separately under the same roof means that you start to live separate lives from each other, but both continue to live in the marital home. As the cost of rent and other living expenses continue to rise this is becoming more common, but will usually only work if you and your former partner continue to have a good relationship with each other, even though you have acknowledged that the relationship is over. If tensions exist, however, continuing such an arrangement would prove difficult and if you have children they will undoubtedly suffer if there is conflict in the household.
As far as the Court is concerned it is not sufficient to say that you sleep in separate bedrooms. There needs to be a complete breakdown in all the usual things that couples do for each other. There also needs to be a comparison done of your lives both before and after the alleged date of the separation, to prove that a separation has in fact occurred.
The things the Court will consider in deciding whether you are separated under the one roof are whether you:
- Have ceased sexual activity
- Live in separate rooms
- Operate separate bank accounts
- Do not share meals
- Do not provide household services
- Do not share entertainment inside or outside the home
- Do not represent to relatives, neighbours or friends that the marriage is continuing
If both parties contend that they have separated even though they still live under the one roof they will have to give the Court evidence of this. In some cases where there is a dispute as to the date of separation, your family and friends might also be required to give evidence comparing the pre and post separation situations.
Children
The ending of a marriage has added complications when you have children. One of the most difficult challenges facing parents at the time of separation is deciding how they will divide responsibility for and time with their children. Parents sometimes fear that the loss of their adult relationship will also adversely impact their parent-child relationship. They are also concerned about the potential negative impact of their separation on their children’s healthy development.
When and how children are told about their parent’s separation and the way parents handle a family breakup has an enormous impact on the way children cope with their lives. It is important to consider telling your children with your former partner. If this is difficult you may find it beneficial to seek counselling, mediation or family dispute resolution for help in this regard.
The process of separation will be as painful for your children as it is for you and your former partner as they lose the continuum of the relationship between the two people they love the most in the world. For children, the process of experiencing their parents’ separation, of learning to alternate between households, and of potentially moving schools or neighbourhoods can be very challenging.
The degree of parental conflict is the major risk factor associated with children’s adjustment to separation and divorce, and the association between intense marital conflict and children’s poor adjustment has been repeatedly proven.
Take as much if not more interest in your children’s lives at this difficult time and foster a parent/child relationship between your children and their other parent.
Always be courteous to your former partner, avoid arguing or making offensive remarks in the presence of, or within earshot of your children and do not involve them in any conflicts. If parents involve their children in any of their animosity or encourage them to take sides, the children suffer.
How you manage your separation process in the short and long term and how you behave with your former partner can be an example to your children of how to cope with conflict, pain, and expressing negative emotion.
Children are very aware if their parents are in dispute, particularly when it involves them. Children want their parents to agree on arrangements that involve them and want their parents to be mutually supporting parents.
Although separation and divorce signifies that the marriage is over, it doesn’t signify that the family has completely broken apart. Even though the two parents may not be husband and wife, they will continue to be Mum and Dad to their children. Even though the responsibilities of being married are released, there are still the responsibilities of being parents that need to be accounted for.
Co-parenting is the most important aspect after separation and divorce. Both parents must try to gain a sense of stability so that their children can thrive. It is important to remember that although a relationship may be ending, the family’s responsibilities are not.
Remember – put your children’s needs first. Providing that the children are safe, they have both a need and a right to have a relationship with both parents.
Family law principles in relation to children
Children are the full responsibility of both parents until they reach 18 years of age, unless a court orders otherwise. After you separate, this does not change in any way, for example, if you decide to remarry.
The Family Law Act 1975 sets out a number of important principles in relation to children:
- The children have the right to know and be cared for by both their parents
- That children have a right to spend time, and communicate on a regular basis with both their parents and other people who are significant to them
- That parents jointly share duties and responsibilities regarding their children
- That parents should agree about the future parenting of their children
- That children have a right to enjoy their culture
- That where the court is asked to make decisions about children, it must regard the best interests of the child as being the paramount consideration. Section 60CC(2) provides that a child’s right to protection from physical and psychological harm now takes priority over their right to a relationship with both parents.
The Family Law Act encourages separating parents to agree on parenting arrangements without going to court. Parents can usually work out which arrangement will suit their children better than a court can, and a solution reached by agreement is likely to work better for everyone than one imposed by a court. Court proceedings in relation to children should be regarded as being the last resort.
If you can both agree on the arrangements you wish to make for your children after you separate, it will cost you less in time, money and emotional distress, and be easier on your children.
Where there is an agreement, the following options are available to you:
- To avoid the formality of a court order, you can arrange for an informal agreement for your children’s living arrangement. Far more flexible than a court order, it doesn’t have to be in writing.
- You can prepare a written ‘parenting plan’ for your children’s arrangements.
- Your agreement or parenting plan can be made into consent orders by filing it with the Court.
You can also combine the certainty of consent orders with the flexibility of parenting plans to cover different aspects of the arrangements.
Property settlement
After separation, decisions need to be made about how the asset pool will be divided. This is known as a ‘property settlement’.
The asset pool includes all property such as houses, cars, shares, superannuation, liabilities, (mortgages, credit cards), financial resources, trusts and superannuation.
The first step in arriving at settlement involves identifying all of the parties’ property – no matter how or when it was acquired or in whose name it is in. The property is then valued. Often this step is quite simple but where businesses or complex financial structures are involved, it can become complicated and often requires the help of experts.
The contributions made by each party towards the assets are also assessed. These include:
- Financial contributions
- Contributions as a parent
- Contributions as a homemaker
Each situation is unique in determining the contributions by each party.
Factors that are considered in the division of the asset pool are:
- The age and health of each party
- The physical and mental capacity of each party to obtain employment
- Income, property and financial resources of each party
- Whether either party has the care of a child under the age of 18 years
- Any child support that has been paid by a party
- A standard of living that is reasonable in all the circumstances
- Any child support that a party may be liable to pay
- The necessary commitments of each party that enable them to support themselves, a child or another person that the party has a duty to maintain
- The earning capacity of each party
In determining the division of property consideration is given to the above factors and an adjustment of property may be given in favour of one of the parties to offset any imbalance. Consideration is given to the effect of any adjustment and what is fair and equitable in the circumstances.
Settling a property dispute
At all times it is important to keep in perspective the fact that your property settlement is a commercial matter and is most likely one of the biggest financial decisions you will ever need to make. It is important that you remain focused on the commercial aspects at this time. If you are finding it emotionally difficult as a result of the breakdown of your relationship, consider seeking the support from a counselling professional. By remaining focused on the commercial aspects you will be in a stronger position to make sound rational decisions.
There are three ways in which a family law property dispute can be resolved. These are:
- The parties use methods of negotiation. When an agreement is reached the parties enter into and execute consent orders which are filed and approved by the Court
- The parties use methods of negotiation. When an agreement is reached the parties enter into and execute a Binding Financial Agreement
- Litigation – the matter proceeds to a hearing before a Judge or Federal Magistrate.
It is extremely important to note that the above three ways are the only ways in which a property settlement can be finalised in a legally binding manner.
Unless you have a property settlement order made by the Court, a consent order or a Binding Financial Agreement, then the issue of property settlement between you and your partner may be “still alive” and either of you can still instigate court proceedings.
It is also important to note that once twelve months has passed since your divorce has become absolute, property and spousal maintenance proceedings can only be commenced with leave of the Court, which is often difficult to obtain unless hardship for you or the children can be established and a reason for the delay is given.
Divorce
Divorce is only the physical ending of a marriage and occurs when one party applies to the Court for what is called a certificate of divorce. It does not determine issues of children, maintenance and financial settlements.
Under the Family Law Act 1975, the irretrievable breakdown of marriage is the only basis on which a divorce is granted. These grounds are established by the husband and wife having lived apart for 12 months or more, and there being no reasonable likelihood of reconciliation.
It may take about 2-3 months from the time you file your application for it to be heard by the court. The hearing itself lasts only a few minutes and is usually heard by a Federal Court Magistrate. Successful applicants for a divorce under Family Law in Australia are initially granted a decree nisi. The order becomes final (decree absolute) in one month and one day from the date the divorce order (the decree nisi) is granted.
If you and your former partner have a child or children under the age of 18 years, your application for divorce must include information about the arrangements for their care, welfare and development. If you are the applicant and you have children under 18, either you and/or your lawyer must attend the court hearing. The Court will not grant a divorce unless proper arrangements have been made for the children’s care and welfare and those arrangements have to be explained to the Court.
If there are no children of either your former partner or you under 18, then it is not necessary for you to go to court. The divorce application gives you the option of not attending.
If you have been married for less than two years, counselling is required before the Court will grant a divorce.
It is advisable to obtain a divorce rather than remain separated for an indefinite period due to the legal consequences that flow from being married. Besides the fact that you cannot remarry without first obtaining a divorce, staying married affects your rights and obligations in relation to financial matters.
It is important to note that once the divorce order becomes final, a property and/or spousal application must be made to the Court within 12 months. You can apply for leave from the Court to make an out of time settlement after this period if hardship for you or the children can be established and a reason for the delay is given.
The granting of a divorce does not affect your responsibilities and obligations for children or affect your property and financial entitlement. The majority of people deal with parenting, property and financial issues first and leave the divorce until the end of the process.
Financial information
Know where you and your partner have bank accounts, life insurance policies, share certificates, all other instruments of finance — and important documents such as marriage certificate, passports, your birth certificate and those of your children.
Obtain statements and balances for bank accounts, plus copies of Wills and trusts. Print information stored on the computer or copy it onto a USB device.
The more information you have, the better.
Get up to date on the money you have and the decisions that have already been taken.
Keep copies of financial documents in a safe place such as a safety deposit box or with a close relative or trusted friend.
Bank and Loan Accounts
If there are joint bank accounts/loans/mortgages, consider changing the account withdrawal procedures so that you both have to sign as joint signatories to withdraw any funds. You might also consider limiting or cancelling any redraw facility.
If there are accounts (credit or debit) in your name that your former partner has access to (i.e. as a supplementary card holder), you may need to consider contacting your bank to limit/cancel any access by your former partner to that account.
Paying the mortgage
Keep in mind, if your name is on the mortgage, it is important to keep mortgage repayments up to date. If they are not this could have an adverse effect on your credit rating.
In negotiations and also in court determinations consideration is given to the capacity of each party to pay the mortgage.
In some circumstances the capacity to pay the mortgage may become difficult once one of the parties has moved out of the marital home. If neither party can make the mortgage repayments due to their financial circumstances it may be necessary for the marital home to be sold. The proceeds from the sale can be placed in a trust account held by either party’s lawyer or if property proceeds are likely to be held for an extended period, they are generally placed into an interest earning controlled monies account until a financial settlement is reached.
Alternatively you may agree to distribute the proceeds. This will be characterised as a partial property settlement and will still be included when the division of marital property is calculated. It is essential to seek legal advice and formalise the distribution of such proceeds by way of consent orders.
It is in your best interests to consult with your lawyer if there are any issues with regards to mortgage repayments.
When you separate you must carefully consider the arrangements that are in place. Either way, whatever you decide is a risk and the expert advice of your lawyer on this matter will be highly beneficial.
Outstanding bills and obligations
Even though you are in the process of separation and divorce, the creditors to whom you and your former partner are indebted, still have a right of recourse against you both. Additionally, if you and your former partner are jointly obligated on an account, slow payment or non-payment can adversely affect your credit rating. Not only that, but you also can be sued by creditors in certain circumstances. Therefore it is important to keep careful track of your outstanding bills and obligations.
Consider whose name the utilities are under
It is important to be clear about whose name all the utilities are held in. If it is not you and you remain living in the marital home, contact each utility company and have each account transferred into your name. This will help prevent an angry former partner from cancelling the services on you.
If these accounts are in your name and you no longer live in the marital home, give notice in writing to your former partner that you will be removing yourself from these accounts by a set date and that they need to contact the relevant utility companies to have the accounts transferred into their name. You might have reasonable expectations that your former partner will pay for these expenses for the property they are living in, but if they do not pay then this could affect your credit rating.
If utilities are in both your names, the above approach should also be adopted.
Your Will and insurance policies
One of the first priorities immediately upon separation is to update or prepare your Will and revoke any Power of Attorney your former partner may have. Any existing Will is likely to list your former partner as a beneficiary and possibly also give them control as an executor. Even if you are divorced your former partner can make a claim if they were dependant on you. Therefore it is essential to update your Will.
Make sure you give a copy of your updated Will to a close relative or trusted friend.
Get detailed information on every insurance policy you own, jointly or individually. Get the name and phone number of your insurance broker. If the beneficiary of your life insurance is your former partner you will need to update your nomination.
Your superannuation
Getting superannuation sorted after your relationship ends is an important step in planning for your future. Super is treated as a type of property in your financial settlement and can be divided by agreement or by court order.
If your former partner is the beneficiary of your super fund, this will need to be updated. In addition to the superannuation entitlement there may also be life insurance benefits that need attention.
Private health insurance and Medicare
Contact your nearest Medicare office and advise them of your changed family circumstances and request your own card, as this can contribute to protecting your privacy in relation to any medical treatments you may need. If you have children under the age of 18 your children can appear both on your card as well as your former partner’s.
It is important that you make sure you have health insurance in place. Consider who the primary holder of your private health insurance policy is. If it is not you, then potentially your former partner could remove you from that policy without notice to you. Not only could that lead to obvious problems of not having essential private health insurance, but it could then result in you receiving a loading on any future health insurance you take out as a result of the government’s incentive scheme for remaining covered by health insurance.
Contact your private health care fund, (1) to ensure you are still covered, and (2) to inform them of the situation and put in a formal request that you wish to be notified of any future changes to the policy.
It is important to note however, the health insurer may not consider family cover continues to cover a separated spouse who is not the primary holder of the insurance.
Private and confidential mail
It is important to protect your privacy, particularly when it comes to correspondence in relation to your divorce. There will be sensitive information being sent to you from your lawyer and possibly other divorce experts that should be for your eyes only.
Have your mail re-directed to either a close family member or trusted friend. If necessary rent a post office box. This is recommended regardless of whether your former partner and you remain living together or not. That way if there are any problems with your former partner they will not have access to your mail.
Set up a new e-mail address. Change the password on any computer you use that has sensitive information relating to your matters saved on it.
Keep everything in writing
It is essential to keep all correspondence and notes in relation to your divorce particularly if you have children. That includes all e-mails — no matter how trivial you think the subject is.
Make sure any requests and agreements between yourself and your former partner are in writing so they can be referred to if needed at some point in the future. E-mailing is fine; just make sure you keep saved copies. In circumstances where you and your former partner agree on certain matters verbally, ensure that you follow up what was agreed in writing.
By retaining a written record, there can be no dispute as to what has been agreed between you both. Even after your matter is finalised, follow this rule when communicating with your former partner and you will not be caught out.
Be careful when using electronic media
In this age of electronic media be cautious of any information or comments you post on Facebook, Twitter, text messages and e-mails. Once these comments are floating in cyber-space they may fall into the wrong hands.
Electronic communications are best used for passing on information. Be factual, not emotional. It is essential not to vent, make critical remarks or complain as these can be altered, kept, reviewed, printed and forwarded to other people. Be mindful that such communications are more permanent than verbal discussions.
Do not write e-mails, texts or post any comments on Facebook or Twitter when you are upset, angry or have consumed mood altering substances. It is prudent to save any messages before sending them, leaving them for a few hours or perhaps sleep on what you have written and then reread before sending the message.
If your matter was to go to trial these comments could potentially be used as evidence against you.
If you receive hostile electronic communications you do not have to reply with the same emotional approach, or use the same medium. If you wish to respond remember, to stick with the facts.
Child support payments
Parents have a primary duty to provide financial support for their children until they reach the age of 18 years. How much should be paid depends on the financial circumstances of each parent, the level of care each parent provides for the children, the ages of the children and whether either parent supports other biological children.
The Department of Human Services works out the amount of the child support by using a formula based on:
- The cost of caring for children (based on Australian research)
- The income of both parents
- Who cares for the child/children
- Whether the parents have any other dependent children living with them
- Whether the parents have any other children for whom they must pay child support
A ‘Costs of Children’ table has been created using Australian research, which also adjusts for the number and ages of the children.
The costs of the children are shared by both parents. The CSA works out these costs by combining both parents income with a ‘self-support’ amount deducted from their income before the calculations are made. The self-support amount for 2012 is $21,622.
The parent with the higher income is responsible for providing the greater share of the children’s costs. (If you have other children of your own living with you it is important to let the CSA know as your income used to calculate your child support responsibilities may be reduced and you may pay less child support).
The amount of care each parent provides for the children is also taken into account and can be recognised as meeting some or all of the costs of the children.
Spousal maintenance
The definition of spousal maintenance is money paid by one spouse to another for their financial support following separation and/or divorce. It does not include payments for dependent children.
Spousal maintenance can be paid by agreement between the spouses or by order of the Court.
Generally the Family Court expects both parties to make reasonable efforts to get paid work if they can. However, the Family Court accepts the need for a party to care for children, especially those not yet at school and often allows a spouse who has not been in employment to receive spousal maintenance while they find work or re-train.
Maintenance is not automatic. In deciding a maintenance application, a court considers the needs of an applicant and the respondent’s capacity to pay.
Normally spousal maintenance claims are dealt with at the time of property settlement. A party can however make a spousal maintenance application on an urgent, interim or final basis separately from a property settlement application.
Notify organisations interested in separation
Consider notifying the following organisations of your separation: schools, sporting clubs, banks, places of employment, real estate agent’s, council and utilities providers and service providers.
Look after your health care needs
Make appointments for medical check-ups, have dental work done and have your glasses updated. You don’t want to run into any new physical problems while you’re in the throes of separating.
If you are having difficulty coping avoid self-medicating with tobacco, alcohol or other drugs. Seek help from a counselling professional or doctor.
Consider counselling for both yourself and your children
Although all children may react with feelings of anger, resentment, anxiety and mild depression for a couple of days, you should seek professional help if your child exhibits the following symptoms for over a few months:
- Sleep problems
- Poor concentration
- Self-injury
- Poor school performance
- Withdrawal and avoidance of enjoyable activities
Often it is a good idea for your children to have someone impartial they can express their feelings to without fear of judgement or criticism, even if they do not exhibit signs of distress.
With regard to yourself, it is often very helpful to seek the guidance of a counselling professional to help you with your emotional needs. A counselling professional will provide you with support and constructive ways to manage and deal with the many difficult emotions you experience.
Keep communication lines open with your former partner
Going through separation and divorce is a traumatic experience and emotions tend to get heated — leading to a breakdown in communication. Often separating couples rely on old communication habits to try and resolve important issues arising from the separation — the same habits that probably contributed to the breakdown of the relationship.
It’s definitely not easy communicating with your former partner under these circumstances and at times it will take supreme effort, but consider it is a benefit you are providing to your children.
This is often a time of enormous frustration as both of you remain co-dependent on each other in various degrees as you each require different things from each other. Neither of you can move on entirely independently of each other until settlement is reached.
Remain calm during all discussions with your former partner and aim to be amicable and civil wherever possible.
If communication does get heated, do not continue. There will not be a successful outcome whilst emotions run high and to continue in this vain is pointless. Walk away or hang up the phone if necessary. This will also protect you from any domestic violence or your partner bringing a domestic violence order against you.
Keeping communication civilised can help you both to deal with the big issues about children and property more easily and contribute towards your matter being finalised sooner.
Support and guidance is essential
Overwhelming emotions can reduce your capacity to think clearly and impair your judgment. Trying to make rational decisions can be difficult or sometimes near impossible. It is hard to know which way to turn or what actions need to be taken to protect your emotional and financial well-being.
Do not feel you need to go through this alone. Family and friends are an invaluable source of support at this time. However, it is important to keep in mind that every divorce has its own unique set of circumstances and difficulties. You will often hear well meaning, yet conflicting advice from those close to you as to what you are supposed to do and how you are supposed to proceed, or be told what they believe you want to hear rather than what you really need to hear. All this adding to the confusion you are already feeling.
It is essential to receive direction, support and guidance from a team of professionals who can remain impartial, who take a no nonsense approach working alongside you as you deal with the many aspects of this major life adjustment, yet at the same time have empathy for your situation and have complete understanding as to what you are going through.
(Extract from “The Divorce Navigator: A Practical Guide to Divorce”) RICHELLE HAMPTON
For further details contact:
Richelle Hampton
info@divorcenavigation.com.au
Say, you got a nice blog.Really looking forward to read more. Keep writing.
My daughter got divorced in 2008 but was not aware of claiming the spouse’s fund. Can she do that now in 2015
I’m leaving home after my spouse and I lived separated life’s at home for a very long time. My partner has a alcohol problem that makes it a stressful and unhappy invironment. I tried a legal asset split but after 6 months giving up. I cannot live this way any longer so moving out before a legal split, what financial obligations do I have towards my spouse
Hi Gerda,
Best wishes with you separation. Living a life in the same home but separate is no life. You will be able now to build a new one. For your financial obligations you will need to speak to a family lawyer. Check out some helpful links to help you find your information https://www.dadsonline.com.au/in-crisis/
My wife and I have been married for 4 years and separated for 18 months (living separately). Will staying married in any way affect a property settlement, i.e. is it my best interest to get a divorce sooner?
Hi James – there are many factors that a court can take into consideration when deciding what is ‘just and equitable’ for a division of assets and liabilities following separation and whether or not a divorce has been granted is typically not one of them except to the extent that the date of divorce affects limitation dates (the date by which a party may apply to the court for orders regarding property following divorce).
The date of separation (as opposed to divorce), however, is important as that allows a calculation of the duration of the relationship and provides a means of ascertaining how various assets and liabilities have been treated in the time between separation and the date a court makes orders (whether by consent or otherwise) in relation to property. Long story short, in Australia’s “no fault divorce regime” divorce is more cultural than practical but always remember that there are strict time limits for applying for property orders and if you are in any doubt you should seek independent legal advice on this topic.
Hello Ben
Thank you very much for your prompt reply. My question really is that say my net worth at the time of separation is $500,000, and just say by the time a property settlement is reached my net worth is $600,000 – which figure will be used, i.e. net worth at time of separation, or net worth when property settlement is reached? Is it in my best interest to get a divorce sooner rather than later assuming my net worth and income will increase over time?
Hi James,
The Court determines property as valued at settlement not at separation. As such, if your assets are increasing I would encourage you to seek advice regarding settlement ASAP. Divorce and property settlement are separate proceedings and as such you can have a property settlement without divorce if that is a priority.
Any questions – pip@walterslaw.com.au
Thanks Pip, appreciate your advice 🙂
HI
We been living apart for over an year, i have a personal bank account only in my name. Does my wife have access to this money as part of the settlement ?
rgds
Hi,
There are a couple of Family Law friends of Dads Online: Online Family Lawyer and also Lovelaw Online. You could message either of them through their Facebook page. Mention you are a friends of Dads Online and I am sure they will assist you.
Peter
Hi, I have the same question.
Did you get a direct and professional answer regarding your bank account being in your sole name and the spouses access in terms of award? Thanks for your time, regards Mark
Hi Guys…quick question….I bought a car after a pay rise that would cover the payments around 2 years back (finance) without talking to my partner.
I just came home with it. He was pretty upset, but had accepted it and gotten over it. I thought.
Especially since he then went out and bought a Harley on finance. granted its $20k cheaper than the car, but still…..
Now, 2 years down the track, we are separating, reasonably amicably.
The house is on the market, and my feel is that we should pay off all debts, and split the equity 50/50 when it sells, so that we both walk away on an even keel, and debt free. He says that I should keep the car debt (20k) since thats MY debt, and that he should keep the bike debt. (8K) Surely all debts incurred during the marriage are just that, and should be cleared with the proceeds of the house sale? I hadn’t realised that he was holding such a huge grudge. Thanks so much for your thoughts on this
Hello,
I have just gone over 12months separation and my Ex has cut off all communication even with the kids sine Jan 2015. She placed a VRO on me because I found out she had her boyfriend living with my girls through a 3rd party. She claims I’m an alcoholic and a drug addict she posts all this on FB and still does.
She also does not want to negotiate Property Settlement, I have funded several bank loans aswell as paying Child Support and other misc bills. Our family home we only built Feb 2014 which was left vacant as we moved closer to family and friends in Perth. I arranged for the home to be leased and my Ex moved in and advised the real-estate that it was no longer available She then moved out once the new tenant went elsewhere. The loan I managed to pay up until the new lease but is now in Arrears as well as Shire and Water Rates. I have spoke to the banks and lawyers but no one has given me a straight forward answer. If she totally disregards her responsibility which has gone on for 12months surely there is something I can do to strip her of her rights so I can at least ensure we are not accumulating further debt? There are other things she does out of anger which just made no sense at all which has cost a fortune.
How can I do this before property settlement??
I have a question, my parents are going through divorce because my mother was discovered to be unfaithful for 25 years after she was found out she turned into a person I have not seen before she lied to police and now my father has an AVO against him so he can’t go near the property or he gets a jail term…the problem is when I went to recover some things from the house through a property recovery order (with police presence) I found that she has cleared the safe (which has personal jewellery belonging to my dad, my siblings and I. Money and private personal documents such as passports) and almost everything all that’s left is the couch, dinning table and beds…what can be done?
Hi Emmy,
Its disappointing I know when things like this happen and you have no control over it. I hope you’re OK and know its nothing to do with you. Parents make decisions for themselves without consideration for the children as they believe the children will be better off once they’re better off. Your mother taking all the contents is wrong but passports, jewellery and material contents can all be replaced so hopefully you don’t worry to much about them. Your dad will be feeling blessed that he has you and remember you don’t need to be caught in the middle so give yourself a break and let you dad work through things to get his life back on track not you. Just be his daughter and you being around will give him happiness and a nice distraction. It would be worth speaking to people about how your feeling so that you can get unbiased and professional help to work through your feelings, people like reach.org.au . There are family lawyers, mediators, doctors, physiologists and support groups that can help your dad, suggest he looks at our https://www.dadsonline.com.au/in-crisis/ and see who could help depending on his needs. It will work out, let us know how you go 🙂
I would first advise asking the court for a status conference, so that the judge is aware of the situation. If the judge says you may proceed in default, then I would advise submitting your own separation agreement and parenting plan to the court, wherein you are designated the primary parent.
Hi there – I removed myself from the family home after 25 years of marriage as my husband refused to leave the home. He now has another partner and he spends most of his time at the new girlfriend’s home on the other side of town. My boys, 17 and 23 are left to their own devises. The youngest one is doing Year 12 which is very hard to do when you are parentless as such. He is constantly unwell and even though I try to get him to move in with me he wants to stay at the lovely family home close to his school. I am trying to negotiate settlement but I am being ignored by my husband. I wish to remove my husband from the family home as the children wish for my return. My solicitor says that we can ask him to leave as both children want me in the family home. Isn’t there anything else I can do?
Hi Penelope,
Mediation is the best resource to use when trying to work through things like this. You will be able to put forward your thoughts in a controlled environment and be heard as will your husband as well. Your solicitor can arrange this or Relationships Australia will provide this. Logic usually prevails and it becomes very obvious when one party is just simply trying to be difficult. Best wishes to you in working it out amicably.
hi.my wife was have 2 house under her name before we marriage.we been marriage for 20 years,i am do statement soon,my wife she sold one house 3 years ago for 600.000,i don’t know what she done with this money,also she took loan under the second house,my son 14 years old told me mam she will build new house,from the money she have from first house and the loan she took from the second house.my lawyer said will be hard i get any think because we don’t know what she done with the money from first house&second house loan on it,so this true i get nothing,i am have medical condition effect me from work 3 years now,i was sharing all pills with my wife and do must housework.so i can get even 15% or i get nothing.
thank u
Hi,
I am looking for info on what other separated folks do with regards to extra children expenses (excluding Child support payments).
My wife and I separated amicably, and I pay a substantial amount of child support, $760 per F/N . Always on time etc. I have the kids 4 nights per fortnight.
She asks me to go 50/50 in various children related expenses (swim club fees, school camps, uniforms etc etc). So far I have been doing this because I want to support the childen, I don’t want her to struggle either. Should I be doing this, or does should my CS payments be ‘my portion’ of the overall financial expenditure to raise the children. Oh, I pay for everything when they are with me. Buy clothes and living needs for my residence. I get on well with my ex wife, She is not a ‘money grabber’ or after anything more than she is entitled. We both generally want to know what others do, or the general rules surrounding this. Kind regards Steve
Hi Steven,
Thats an easy one. Everyone is different based upon, incomes, relationship and capability. It is the sum of all of it which will equal can you afford it and do you want to. I really like your “wanting to support the children”. At the end of the day its about making sure the kids are supported between the two parents. It is always best to have an agreement on these things though so that one does not feel they are being unfairly treated. Also need to make sure the kids aren’t being over spoilt with costly activities to compensate for a separated family. Sounds like you have the relationship with your ex to discuss this and put limits and guidelines in place. I go half on all expenses with my child’s ex but it doesn’t matter what other people do. Sounds like you’re a good dad. Well done M8.
Thanks Peter for kind words and good advice. We are both pretty much on the same page not to spoil the kid. We have basically agreed that day to day ‘normal’ expenses will be covered by CS payments. We have also agreed that any unforseen major expenses (medical, dental etc etc) will be 50/50. You are right though, an agreement on paper would reduce confusion. Good on you too for doing the 50/50 thing. sounds like you are being a great dad for that. Thanks again.
Hi,
I have been through settlement about 4 years ago but haven’t gotten a divorce yet. I have taken out a loan and brought a car, I am wondering if my ex wife can claim that car now?
Hi Tracy,
My name is Daniel Dalli of CBD Family Lawyers and I am a friend of Dads Online.
If you have finalised the division of assets (through the Court system or through a Binding Financial Agreement) it is likely that an aspect of the Order that prevents each of the parties having an interest in any future asset. A divorce only relates to the and not the division of assets. Please note that you shouldn’t rely upon this information. You should really have someone carefully review any Court Orders (and any additional documents/instructions). This is not legal advice – it is just a discussion of general principles. If you would like to further discuss this feel free to give us a call on (03) 9642 3517.
Best of luck.
me and my wife have married for over twenty years and this has been far to much for me I have ask numberous time for us to work together she say yes but it never come to pass my heart felt feelings is we to be divorced I cant go any further we bought this house 2011 October it is under my name only because her credit problem no more joint checking account because a crediter came after her and pulled everything out the account it was closed so many things has happened over the years I am just plain tired what are my option if any in this marriage do I just walk away or what all the kids are of age now last one just turn nineteen the oldest is 31 there no money saved at this point she has two part time jobs she works and I have one I pay all bills she received a 36000.00 settlement from her job two years ago did not help catch up on any financial obligation I guest because everything is under my name years ago my payroll checks plus tax returns was being garnished because we had separated and she was working and applied for ware fare assistant lied said I wasn’t helping with the children we I found out I called her about this ask if she was going to help me pay this back she replies yes and it never happen I love her but I am surly not in love anymore I told myself I will stick around until the kids are of age now I am ready to go any help with situation
My wife is on a temporary spouse visa (she is not from Australia), and i am a Permanent Resident.. we’ve been married for 2 years, but those 2 years apparently was not a smooth one, and i am planning to get divorce. How can i protect my assets (properties, car, etc)? She never paid any bills or mortgage since we were married, will she able to take my assets in this case?
Hi, our family law friends of Dads Online have responded with the following response to your question…it is hard to say what division someone may be entitled from those facts. It may be the case that she is entitled to a portion of the marital assets and there are not necessarily ways to protect those assets. There are of course, better ways to manage the dispute to ensure that the majority of assets are not wasted through costly arguments. Best wishes.
hi my wife and i have been separated for over three years she is in the family home. my kids are now over 18 we had an unwritten agreement while i was paying rent and some bills she did not persue child support. i paid off the mortgage before leaving out of an inheritance.my questions is, does the length time we have been separated have implications on the split of assets.
Hi Bob, post-separation contributions are relevant to property entitlements, it’s not the length of time per se that is relevant to assessing contributions but the nature and significance of the contributions. It’s hard to say without more information how what’s happened after separation might impact on your entitlements. If your kids are over 18 this may mean you were together for 20 years or more, in which case the three years since separation might not be of much significance compared to the contributions while you were together, but it all depends on the circumstances. It’s great that you’ve taken a cooperative approach up to now. Now that your kids are over 18, this may be a good time to finalise your property issues, hopefully also by cooperation, such as through consent orders with the court or a binding financial agreement. Leaving it unresolved means that if your wife’s circumstances change, e.g. if she develops a health problem, this may affect your entitlements, which is not ideal. Similarly if property values in your area go up or down this could impact on your situation. Also you may want to get advice on the time limits for getting orders in place, or how to get extensions to those limits.
My defacto wife and I have 2 young children and separated last year after 7 years together on and off. We are both long term unemployed (3+ years). I have historically been the bread winner and have paid for my ex’s lifestyle since we met and she has not made any financial contributions to the family unit. I have a sizable asset pool from property investments purchased before the relationship commenced. My wife came with no investments, just debts which I have paid off. Being both unemployed we have been, with the exception of a few months, equal parenting. I have had 2 family lawyers tell me that my ex may be entitled to 40 or even 50 % of my assets and that if I land a job and she does not that I can expect to pay more. What is the history and back story to Australian Family Law property settlement, if the reality is that my ex may likely receive 40-50% of money she did not earn I am interested to understand if this largess come from parliamentary law(s) or, court precedent or some other way. Further, I understand why salary and salary discrepancies might impact upon child support payments but do not understand the relevance to a property settlement. I would appreciate the history lesson.
can you please guide me.my daughter turns 18 on 26march 2017.
my wife moved out from the family home on nov 2015.
in nov 2016 if she wants settlement will she get 60% ?she does not wish to work.she is on the dole.
she has worked in the past.
i am paying child support from nov 2016.
we have been married 23 years.
Hi, I meet my partner four years ago, after seeing each other and i opened my heart to her saying I wanted children and was 39 years of age and she was 38, she told me she wanted to have other children as she has two children earlier in her life, she had her first kid at 16 by the time she was 18 years of age she had two kids, one is 24 the other 22 now.
After three mouth she feel pregnant, which at the time I was in shock and I thought I’ve been set up and she hooked me. Any way I wouldn’t change it for anything now I have a beautiful 2 year old girl.
I have brought her a lot of things a business, car, etc, anyway she pushed me to buy other house last year which she wanted me to go into joint names to help her have a home for her other two kids, I brought the place but in my name.
Anyway we don’t get along at all, so she wants to move in the house now with my girl and be friends to still asking me to put her on the title.
I told her not to move into the house and I will help her rent a place, any way she has now told me she will move in there next week.
I want a safe hone for my girl but the way she think she can just move in is killing me.
What should I do?
If I fight her it will go to court do I want that?
I want my child with me and her to go is that possible?
I have been taken for a ride and it hurts and im not thinking right.
Please help
Thank you
Hi Paul, Im sorry it hasn’t worked out, it must be disappointing for you. You sound like you are trying to help her find good accommodation, not sure how she can move in? does she have a key? You are best to ask those questions to a family lawyer because we are not educated in law to offer you legal advise. Check out http://www.lovelaw.com.au (an online legal hat service) Hopefully she will see the sense in having her own place and you can both then share the parenting of your child.
My wife convinced me to trust her and sell the family home. She put the money in her private bank account. Then she transferred almost all of the money to a friend. She then left with the kids on a long holiday. Now she wants a separation to divorce. Money over a family is pretty sad. I recently found out the friend she gave the money to has promised to give her a major sum of money in return for the money (our money) she gave her. The friend needed the money to break a fund but didn’t want her spouse to know about the fund so she had to get the money without her partner knowing. If the friend gives her (my spouse) the money during the separation in either cash or assets like a house, am I entitled to a portion since the original money given to the friend was also my money?
Hi Justin,
What a terrible situation to be in. We would be seeking out legal advise with an experienced solicitor. We are not legal advisors but it sounds like you have a strong case to recover your rightful share. Best wishes.
My partner and I are getting separated. We have 3 children aged 6,8 and 12 years old. We own the house that we are currently in and have a mortgage of $420,000 left to pay. The value of the house is approx. $700,000.
She would like me to move out and she and the children will remain in the house. She will be the principal carer of the children. We want the separation to be as amicable as possible but I am worried that I will be financially hit since I will no longer have the house.
Since I have not been in this position before what are the legal ramifications of the property in terms of my ownership. Does she buy me out?
I was informed that the amount would be the equity/2 minus the remaining mortgage/2 which would be approx. $140,000. I have now been informed that she would get 70% of the value and I would only get 30% which would equate to $80,000.
Please could you help me on this as I am very concerned that my part in the house will be eroded. This is in addition to the emotional trauma that we are currently experiencing.
Hi Leigh
It sounds about right? I’m no legal expert but if your wife is going to be principle carer the monetary split will be definitely in her favor. You should get professional advice. Its going to take a lot of money to resettle 3 kids and keep their world as normal as possible. Dont be to worried about it, time will help you rebuild your own situation but in the meantime, focus on the well-being of the kids only and look after your job as that is what brings your monthly money in. Set up a place that your kids will feel like home and enjoy your new road.
My wife and I are separating. She closed our joint bank account, without my knowledge, and has split our cash funds evenly into two bank cheques (one for her and one for me). We also own a house which will be sold and divided/distributed via consent orders which we are trying to come to agreement on. The court will consider all assets when making a determination. My question is: should I bank my cheque? I just have a nagging feeling that she might cash hers or hide it somehow, so that it ($62,000) will no longer form part of the asset pool. She has provided me with paperwork that shows the cheques made out to each of us. Any advice will be greatly appreciated.
Hi Russ,
Bank it into your account. Everything has a trace, it wouldn’t matter if she withdraw it in cash and hid it in a pot plant in the back yard, there is a bank widthdraw slip or in-outs online and everything will be accountable. Dont worry, you cant hide these things.
Thanks Peter, you’ve put my mind at ease😀 It’s horrible- The amount of distrust a marriage separation causes. Laptop lids that get closed when you enter the room, phones that get hung up etc etc.
Many thanks 😀
Yes Russ, it can make partners into strangers and you are left wondering how did I ever love this person? At least we know that we don’t have to love them anymore, just co-parent, and do our part well. Best wishes M8
Hi Peter,
Have a query on Spousal Maintenance. My ex is 53yrs, currently her role is the Homemaker, (no kids under 18), has been an employee and employer. She has a good head on her but is easily bored.
There is no landed property (long story), there are 3 cars in her name fully paid, she has several bank accounts which I have never had access to.
All Uni fees and private school fees 100% paid by me
All kids get $200/week allowance to support themselves
Rent and all utilities bills, mobile, Foxtel etc are paid by me
$1000/ week is provided to her to as household allowance.
(yes I am struggling mate!)
Do you view she has a case for Spousal Maintenance?
I want to reduce this but she is not having any of it, lawyers will be involved but would like your view on this
Hi, Its a tough one, you are being very supportive! I dont know if she will need ongoing spousal maintenance? What we see as logical is often not aligned with what courts believe is fair? Legal advice is the best course of action. If your in Melbourne, CBD family Lawyers are very supportive of Dads Online. A lawyer named Danny Dali said he is always happy to assist Dads online Dads, give him a go and see if you can get some answers to your questions.
Hi I’ve seperated from my defacto after 25years. Over the years she has run up debts in my name and without my knowledge.
She has all our belongings and recently I have found out that these debts have effected my credit rating? There’s approximately $10,000 in debts.
The family car is in my name and about to be fully paid out. Am I in my rights to sell the car to pay off these debts she has occured?
Any balancing you can do that leaves you both with less debts to consider is bound to be a good thing. Currently I am sorting things out with my ex who thought he didn’t have to pay half of the household expenses or share his income, never mind the possibility of a joint account! Secrecy and lies kill relationships.. kindness and sense leave you with self respect. We all rely on cars but paying the bills is more urgent, including any outstanding debt. It is hard to see straight when people are upset.
No one ever really benefits when a relationship breaks down, even if some people think they do. All we can hope for is future peace and balance. Good luck guys with finding out how to manage in the future, and I understand the need and value of this page.
Hi Peter,
My defacto won a car when we were in a relationship of 10 years. We have now been separated for over 12 months. We have 2 school aged children who live with me full time. He has our smaller car and I have the larger car he won. He says he wants this car back now because he won it and it is still in his name. The car he has, has been roughly handled by him and all of his friends and I don’t won’t my children in it. I drive my children everywhere as he really doesn’t spend any time with them. What are my legal rights please.
Many thanks.
Hello,
Me and my wife been married for 7 years now and seperated since 2 years (1 child under 18). I am in a process of getting divorce now. I bought a property after we got seperated and ofcourse it’s in my name. I got a car which I bought before we got married. My question is even thou she never lived in the house she is still entitled a share at the time of divorce ?? Thanks
Hi I’m ready to get a divorce I only been married for one year and five months. He is on drugs I have been cleane for thirteen years and been working for twelve. Every time he gets a dollar he go to the streets the last time he almost died I was so afraid now after getting out the hospital for two weeks he back at it . I can’t take it no more I want out I don’t want to sit back and watch him kill his self .
Hi
That is very distressing for you and your husband, has he tried to get help? Are there children involved and are they safe?
I know this is meant for blokes but I have a question regarding the bloke. My husband of 23 years ran away from the family and Australia in February 2015 saying it was Australia he was leaving not us. At the time i was unemployed as I had lost my full time job the previous November. I was still struggling to come to terms with our son’s suicide attempt in August 2013 which is the time my ex decided to start an online affair (found out a lot later). He kept saying he would like to have the family in Europe and I believed him as at this stage I had no idea of his affair. In May 2015 the bank threatened foreclosure as I could not pay the mortgage. The house was sold in August 2015. I sold all our possessions and the kids and I went to Europe to join my husband. The kids and I ended up having to live at my parents house as he had not organised anything else. In December 2015 he joined us. A few weeks later we find out that he had in fact been living with another woman all along, the same woman he was having the affair with since 2013, I found all this out at the same time. My son and I ended up homeless due to my family being less than supportive and my ex leaving to go back to her. My son and I are now back in Australia still legally homeless as we share a bedroom in a house my daughter rents with others. I have nothing but a suitcase of clothes and suffering from severe depression. My son’s mental health has not improved thanks to all this either. I am trying to sort myself out but proving more difficult than anticipated. Getting work is a nightmare and not having a car doesn’t make things any easier. I cannot rent anywhere until I get a job and I cannot buy myself a car until I get work. I am surviving on new start allowance and about to file for bankruptcy on debts that are in both names but that my ex wants nothing to do with. Can I access his super to help me out and is he supposed to help me financially even if my youngest child is 19 ( suffers from depression, anxiety and OCD). DO I have any legal rights for help from him? There is no divorce as he just ran away from everything. He works where he is living now and lives with his new woman so he is set up but left us to just rot
Hello Patricia, That is a terrible situation your husband has left you in? I have no idea why a man would do that to his family? You must be congratulated for the strength you are showing and resilience to keep going and making sure your son is ok. You should contact a solicitor that offers legal aid because it sounds like you might qualify. I would also suggest you see your GP (doctor) and get a referral to a physiologist so that you can talk through your story with a professional support.Your son also needs to have a professional support network and he will also qualify for free sessions to help him with his mental health. Go and see your local GP and they can arrange it. Also if things get overwhelming for you or your son please call Lifeline on 131114 and talk things through with them. Best wishes Peter
HI Brann,
It must be very difficult as you sound like a honest person trying to make things right for your relationship. Your excessive drinking can be mood altering. If you were in Australia I would suggest first seeing your local GP and ask for a referral to a psychologist and also a group to help you control your drinking. Go and search out these professional resources. Professional help will enable you to have the right advise to get back on track. Let your partner know you are taking these measures and I hope she will be patient. Best wishes.
Hi,
Really need some help here. Ive been seperated over 2 years, finally able to achieve a divorce proceeding via online application and my ex has been served and signed as having been served. This took a lot of effort to finalise but a relief it is finally looking to be settled thus far. My big problem is though- i cut off the bank accounts immediately after seperation and put everything in my name including all the credit cards. The credit debts were large and i have been left to pay these as well as left with the mortgage. All i have managed to be able to do is pay off the interest on these credit cards. Ive tried to negotiate and my ex just wont move. We did originally try though solicitors with consent orders but fell through as we both agreed it was becoming too costly and said we would do mediation but now this is just not happening either. I am not financially capable of paying upfront now for a solicitor with the credit repayments, mortgage, child support etc… what can i do? Does being stuck with credit card repayments and mortgage repayments over the past 2 years come into consideration with property settlement? The whole lot is starting to take a toll, i just want to sort out the financial seperation once and for all but it doesnt seem to get traction and not being able to afford a solicitor is making it seem i just cant go anywhere further than just staying in a rut race paying off debts for the rest of my life. What can i do now? The only agreeable thing we have of which of course is the most important, is the parenting plan for the 3 boys. Any advice is very much aporeciated
Hi Rob,
Yes its difficult when you get stuck with all the bills? Sorting this out with a non agreeable ex and not having funds to seek legal advise amplifies the problem for you. Be patient whilst trying to work through it as no good comes from rushing things. If you called Dani Dali from Melbourne CBD family Lawyers and ask his advise? He is a friend of Dads Online and a supporter of Dads, he may offer you some advise? worth an ask.
Thanks Peter i will give it a try. Appreciate your reply
Also I do not know what effect it has on your credit rating, but you can seek financial advice from the debt management people, and see what they say. I think they freeze interest on some debts and with credit cards, gosh that can make it all doable!. The money you are currently paying on interest can go on the loans until they are under control. as most cards are around 20%, you are paying a fifth of the amount every year just in interest.. It is a really good idea when debts get out of control. The next step would be failing to keep up and losing your credit rating anyway, and getting too stressed is never healthy. Look at debt management as well as family court mediation. Mediation is great, but if the other party will not comply in the short term, its best to do whatever is in YOUR control to fix things.
Hi my wife and I have been separated for about 3 months now and she is living with her parents with the kids at the moment, she is still paying her half of the mortgage, my question is, is she allowed to come into our home, where I’m still living any time she wants when I’m not there to grab things or does she have to organise it while I’m there.
Thanks in advance
I believe after a while, like a week or two, entering a house someone else resides when you live elsewhere, is LIKELY to become illegal break and enter. Let her know, call the local police info line (131444) and check. They hate giving too much advice but if you ask if you can go into the house as you are living at your parents they might tell you!
How does a man get a woman out of the house he owns when she has put an intervention order on him and refuses to leave. He brought the house with an inheritance and she has a child by him and four children prior to the relationship. She has moved another man into his house what does he do?
It is my belief that you both have the right to live there unless there is another order in place, in case of domestic violence and the like.
If you have been living together longer than 6 months I believe it is treated as all joint property of a defacto relationship and owned by both of you. Obviously seek legal advice, keep looking online too, and the Citizens advice bureau can be very helpful.
Personally i was told that the family court is very good for people who do not have a lawyer representing them, you can see one to ask lots of advice but then represent yourself. My ex paid about $25 K on a lawyer who was only in it for his money and was immoral to him, as far as I could see, and I represented myself as I could not pay one or obtain legal aid. They like to save legal aid for criminal defence and not family court, apparently!
The other man business is truly horrible but you may have no say over that..try to ignore it.. and go to family court asap.
Hi
My wife and I have been married for just over two years and purchased a property a few months ago. We do not have any kids.
Just recently I have been served with an intervention order and some criminal charges have forced me to move out of the family home. My wife currently resides at her brothers house but has not moved out of the family home.
Since me forced in moving out, my wife has cancelled credit cards, insurances, internet and medial cover. She typically manages the household budget and most accounts are under her own name.
Our home loan payments arrangements have been changed from our joint account to her own account. She has taken out insurance and utility account in her own name.
I am continuing to make my regular home repayments into a mortgage offset account and worried now that it will be less as I have additional expenses and may not be able to make the usual payments.
Plus I have no way of knowing whether she will change the accounts on me as they are setup as any party to change.
What options do I have to protect myself from loosing the family home given these circumstances and changes my wife is implementing without consulting with me through the appropriate legal channels.
I would like to make the marriage work and am dealing with professional help and I am trying my best in reconciling and keeping the beautiful family home.
Hi Joel,
It can make it difficult to navigate a smooth process when there is criminal charges against you still being worked out. There are ways to get back on track so don’t worry.
There is a book that a Simon Turner has written called “Out on a Limb” find yourself a copy and read it. A summary of the book is here: https://www.dadsonline.com.au/out-on-a-limb/
I would also suggest that you call your GP or MensLine on 1300 78 99 78 to seek a referral to counselling for any ongoing issues that you may have. It will assist your long term happiness if you address it now. If any of the problems have been domestic violence, please call Mens Referral Service on 1300 766 491 and discuss with them. The quicker you can deal with issues the quicker you can get back onto a better road with you wife. If you need legal advise, a Lawyer friend (Mr Daniel Dalli) of Dads Online from Melbourne CBD Family lawyers could possibly assist? you could call him and discuss your options. His number is 03 9642 3517. Best wishes.
Hi there
My wife and I are considering trial separation. I believe this will lead to permanent separation . We have a reasonable portfolio of properties etc of which my income being the full time primary one pays all loans and living expenses. Her income goes into her private account as savings. She believes that even if we have the children 50% of the time each that she is entitled to 50%. Ie we have $2million in asset value we own 700k. She believes she would be entitled tom$350. Is this correct? Thanks
Hi Steve,
Im no lawyer but a 50/50 split in my experience from what you have described is best case scenario for you. I think it is always best to seek legal advise to ensure you are receiving a fair disbursement of assets.
All the best.
If assets are split in seperation if you have any why are debts not halved ive been separated 7months and upon seperation took 70000 worth of debt and left her with no debt because we have kids no im facing bankruptcy and still have trouble seeing my kids and is child maintenance take into account the amount of debt u take
I have been renting the same house for over 15 years and my name is the only one on the lease. I have spilt from my wife but she is refusing to leave the house. I gave her 15 days notice in writing which is up today 03/02/17, however she is still refute leave. What action can I take?
Thank you
Michael
Hello Michael,
Do you have children? We are not lawyers but are happy to provide you with a referral to someone that will be able to help you if you need legal advise.
My motto and one that has been my best friend is “Patience”.
Call CDB Family Lawyers (they have been helpful to Dads Online)
Level 1, 271 William Street
Melbourne VIC 3000
Office hours: 9:00am – 5.30pm Monday to Friday
24/7 Emergency Contact: 0423 729 686
Phone: (03) 9642 3517
Fax: (03) 9670 8850
Email: enquiries@cbdfamilylawyers.com.au
Ask for Daniel Dali, Im not sure what they charge but you can discuss with them.
Best wishes.
Hi
I have a difficult wife who is not interested in compromising regarding financial matters. We have a 20k credit transfer card and another worth 20 k as well which is rising . All in my name.
I continually ask for compromise and to have a budget which will allow payments to be made and some savings as well. I can. It get any compromise. I explain we are living beyond our means and this means nothing to her .
I don’t know what to do – we are in counselling and I have stated I want compromise and she says there is nothing to be done it’s just the way it is .
I am startyto feel she doesn’t care for my opinion and when the card is at the limit she will leave me with the debt and take the kids .
Dunno what to do or how to convince her to rethink her strategy
Opinions welcome cause I am lost
Hi Bob,
Using the credit card is expensive money and normally money people dont have. First thing I would be doing is cancelling the credit cards and you need to live off what you earn and budget your expenses and pay off the cards for good. If she doesnt like it, bad luck, welcome to the real world. That debt will grow and grow and its in your name. Bob, get on top of this now.
Hi, In divorce or separation assets and super split . I have superannuation but my spouse has been working 6 years on good income without her boss paying her super.
Does she have to get all super owing to her with documentation before the split can be judged . Thank you for your help.
Hi, my spouse and I separated around 4 years ago. It was registered with child support and Centrelink at the time but we have not had a divorce yet. At the time of separation we had no assets other than household items ( that she took) and dept which I took. I’m the last 4 years I have found my feet so to speak and now have a deposit for a house, own my car and a camper. My question is is she entitled to the assets I have gained since the split?
Hi, do you know of any good online separation agreements and what to include in the separation agreement
Hi,
My son and his defacto have a home they brought 2 year’s ago both their names are on the mortgage our home is also secured to the mortgage the both of them are only 21 & 23 year’s old and have a 3 year old daughter.
The defacto moved out with our grand daughter 2 weeks ago to her parents we have been informed now she has been having an affair with a neighbour and been involved in drugs. What do we do regarding the house as she has never worked but put the morgage in negative so my son has been working 7 day’s a week to catch up with the payments . We are also concerned about the welfare of my sons daughter as the neighbour she is sleeping with is apparently drug dealing, prior to her moving out she would leave thw house around 6pm say she it at a friend’s house to return home 8am in the morning not knowing where she had been is it possible to have 50/50 custody as i know the father never wins in the court’s. Please help what do we do now.
Hi I have a question. I have been separated for 13 months and am now going through a property settlement. Whilst we were still together I sold shares in a company these shares were owned in my company name as me being the sole director.
I re invested the money into another business venture whilst we were still together – this was a decision we made together. the initial $60,000 was used as starting capital and was run down to nothing and even to a point where I had to obtain a business loan to operate the business . I currently operate this business and it is breaking even with no capita left in the business. My ex is laying claim to $30,000 of the initial share sale. Is she entitled to this ?
Hi I have a question,
My marriage is heading for a divorce ..wife says she is not interested anymore in being married.
Living separate lives in the same house, no joint accounts, each won their own car , 2 houses we co-own less than a kilometer away from each other.
We both work and earn almost similar amounts of money around $120 thousand dollars a year.
3 kids , 13 , 8 and 4.
Just wanted to know what will happen in the case of a divorce in terms of division of property.
regards
Tucker
Hey guys
I have been separated for 8 months now. Married for 18 years. I have been the primary bread winner our entire marriage, I have also been the primary carer of our four children. The car my ex is driving was paid for through my superannuation pay out. His debts were all paid for from another payout I received. The car I am driving has been paid for from my superannuation as well, we have a disabled daughter and it is a wheelchair van. The house I am living in my father paid the deposit and I was working full time and my ex was working part time. I haven’t been able to work since splitting due to my disabled Childs high needs. So my question is with property settlement is the high needs of having a disabled child taken into account? Also, When we sell the house does my father’s contributions come out before dividing whats left.
Great article for every independent people.
During separation it really helps a lot.
Hey Guys,
I am a uk citizen but have been living in Australia for the past 4 yrs. My estranged wife & i separated 5yrs ago, but she refuses to give me a divorce. Can i divorce her without her having to sign anything (which she refuses to do, even though she is in a relationship & had 2 children with him). I am also in a relationship & we wish to marry here in Australia. Every site i have tried to find an answer from give me the runaround so i’m hoping you can help set me straight. Thanks guys.
I will not go into where …. but my ex-wife’s lover had many highly placed friends in the community and has good contacts in the small legal community here. For all I know, I will brief a lawyer who will have lunch with the …. (him) the same day. So, can I have my property matter heard in another state?. This State is well known for interesting judgements for ‘mates’. I will obviously have to find a lawyer in another State.
Also, she left to live overseas when we divorced in 2012 and has just returned to haunt me (and re-engage with said ex-lover). It gets complicated, but I want to get the property matters settled. I know I will need the leave of the court, as it is after 12 months.
As a matter of interest, what action can I take to recover the substantial moneys I spent holding the properties that are still in joint names (don’t ask) if I cannot get the leave of the family law court.
Hi Guys,
I’m at a loss as what to do here
Me & my wife are having issues after 9 years & she wants me to leave our rental home & 4 young children even though she claims she wants to fix things. (As I do)
She has put me in my own room but is determined I move out as soon as possible which is not easy as I have no vehicle yo do it with & have a trailer & other stuff
When I tell her that I DO want to fix things she doesn’t believe me…no matter how many times I tell her
She claims I say it but haven’t done anything about it yet!!
Well it’s only been a few days & can’t do much on a weekend plus she hasn’t even given me a chance to.
My mothers has assisted all 3 of my siblings with their separations/divorces & says that I do not have to leave.
I do not want to go, I would rather try to fix things “in-house” & without such drastic measures. When I suggest this, my wife is insistent I go though. So much so, she’s looking at another house for just her & the kids if I don’t go!! 😞
What are my choices as I already know that if I leave, it’s pretty much over? My younger brother seperated for 12mths, went back, had another child & a month later, it was over. This is not what I want for my situation.
Hi Stewart,
Does seem like a strange request if she is saying she wants to also resolve and fix things. You don’t need to move out but maybe you could ask for a “no decisions to be made” until you go through mediation? It will flesh out exactly what is wrong in the relationship and you and her will know what to work on immediately to correct things. Best wishes and make patience your best friend.
Thanks Peter, I have asked that we go through mediation and she says she’s willing to do all that but just not with me here. Makes no sense to me.
I’m trying to keep calm & be patient, just frustrating that she can’t see it’s more beneficial all round to fix it before moving out.
We know the reasons things aren’t working but it’s coming down to she doesn’t believe I want to fix it.
I do, just don’t think moving out before mediation is the right way….and of course, she doesn’t agree
Thinks it will be fixed ONLY if I’m not here
Confused
Hi Stewart, yes it seems like a complete waste of money to move out and for either of you to rent a new place under a new 12 month tenancy agreement? Its as you say much better to try to fix things under the same roof. Try and get an agreement to stay put until at least a couple of mediation meetings, things may settle down and she will see your desire for things to be better. best wishes M8
Hi Guys,
After some advice regarding legal divorce.
I have two, now (22yrs & 19yrs) adult daughters from a de facto relationship that ended 2001. The last time I saw or heard from the girls they were 10yrs & 8yrs. That relationship did not end well probably because of my personal mental condition. I have been on antidepressant medication for over 15 years.
I met a woman 2004 who has two sons from a previous marriage. She and I married in 2009. January 2014 I told her I wanted a divorce. I remained reasonably calm and flexible during the process, however, her youngest son, then 24yrs (living with us) became aggressive, very angry and made threats to bash and kill me. Neither occurred. To keep the peace I moved out of the house.
Mediation was completed February 2015 and signed. I got absolutely creamed from beginning to end even from my own representation.
She insisted on controlling all the financial matters during our entire relationship, not allowing me to have a bank account.
To give you a brief understanding.
I have operated as a consultant for many years, we married, a single director Pty Ltd company was established, the wife being the sole director, call it ABC Pty Ltd. I was an employee of that company ABC Pty Ltd.
I obtained a senior management contract consulting to an organization, call it XYZ Pty Ltd.
XYZ Pty Ltd paid her company, ABC Pty Ltd $160K pa.
She worked as my secretary as an employee of XYZ Pty Ltd on wages of $45k plus super. This scenario continued for 6yrs. I took control of my own income from Jan 2014. I still don’t know the truth.
From separation date January 2014 to mediation Feb 2015, I discovered she set up 9 banks accounts plus she had personal accounts, how many I don’t know. She had access to her son’s accounts as well.
The banks would only give me access to 5 accounts for statements.
She made her son’s and herself comfortable.
Of the $2million asset pool she received, I received an apartment that I could not maintain financially because of what she did to me as an employee of her company.
I discovered that my tax returns were $20,000.00 pa for 6 years.
No superannuation contributions (don’t have to pay super at such a low income)
No Child Support contributions were paid leaving me with a debt of $25,000.00
The banks would not give me finance based on my tax returns of $20K.
Child support agency placed a caveat on the apartment that I was forced to sell. After fees, I received approximately $2000.00
She shouldered me doing a bank transfer when I paid registration and full comp insurance because she was driving the car unregistered. Six months later, She emptied all of my accounts including my BAS tax savings. No police was taken because it was a domestic separation matter.
There are more unbelievable actions. You get the idea.
I am 52yrs absolutely broke driving a $100.00 car living with 82yr mother.
I loved, believed and trusted with all my heart and soul.
My father said, “If you can’t trust your wife. Who can you trust?”
A gentleman arrived at the door when I was not at the house to issue divorce papers.
What is my position legally if I don’t sign the document?
I will never marry again nor will allow a woman to move into a property that I may own in the future.
Can I make a claim against her Will if she were, for example, involved in a fatal motor vehicle accident and her on my Will if I were killed?
Look forward to your response.
Regards,
Bryce.
Hi Bryce,
Unfortunately because we are not lawyers much of what you talk about should be answered by a qualified Lawyer. We can recommend Lawyer friends of Dads Online who are: Melbourne CBD Family Lawyers, 1.1/271 William St, Melbourne, (03) 9642 1545 if you ask for Daniel Dalli (Lawyer) Im sure he will be able to assist if you want to engage them in professional advice or assistance.
Hi,
I am finally in discussions to actually separating from my wife of 30+yrs, at the moment we still live in the same rental property, but that’s about to change very soon, we also have a joint account that we each pay all the bills from and each of us have separate saving accounts that were built up in out time together. My wife’s income is far greater than mine so her savings account is almost double what I have in mine, My worry is if and when we finally split and she moves out which is what we agreed too so far, can I and more importantly should I be applying for a court injunction so as to freeze our accounts. The reason being is to safeguard the possibility that she may transfer her savings out to a friend in the interim till its all done and dusted! We also have 2X properties in the UK jointly owned on with a substantial mortgage(rented with tenants ) and the other outright ownedby both of us.
I have heard horrible stories like there wife went on a huge spending spree rocking up a huge debts on joint credit cards, emptied the house contents, Took all the family jewellery and assets etc! etc!
Hi Gerry
Yes getting good advise is important and I am no lawyer.
A lawyer friend of Dads Online is Daniel Dalli and he is skilled to provide you with the advice you need.
He is at CBD Family Lawyers
Level 1, 271 William Street
Melbourne VIC 3000
Office hours: 9:00am – 5.30pm Monday to Friday
Phone: (03) 9642 3517
Fax: (03) 9670 8850
Email: enquiries@cbdfamilylawyers.com.au
Give him a call and work through it with him.
Best wishes.
Hi,
I am currently in discussions with my ex about property settlement and child support. The Child Support Australia calculator has a requirement for me to pay ~$1800 p/month for two children aged 11 & 9. I have them 5 nights out of 14.
My ex is asking for $4500 p/month for child support which is enough to cripple me. This is approx half of my monthly pay, and would provide her with $9000 p/month to live off. I have no intention of not paying for my kids, and paying the CSA calculation.
She is also claiming she wants 70% of the asset pool, which would see her take cash of ~$1m.
I am going to see my lawyer later this week, but I really want to get a sense if anyone else finds this reasonable / unreasonable? Specifically the child support amount it feels excessive as I have expenses directly related to the children on my time with them.
Hi, my daughter and her partner have split up,there are 4 children involved under 10, she is the one at fault here,she kicked him out and moved her new boyfriend in immediately, her ex partner is really struggling financially,he makes large weekly child support payments and is desperately trying to keep up the rent payments too as he doesn’t want his name tarnished which will effect his future renting
She nor the new boyfriend is payable the rent
The rental company has been informed of everything, except that a new man is living at the hotel,I’ve advised him to tell them immediately
Does he have any legal leg to stand on here? Can he get a statutory declaration stating he isn’t living there anymore? Or is he just going to have to put up with it until the lease is up? I believe they’ve signed a break the lease form but think properties isn’t likely to rent again quickly
Thanks for any advice
Hi Sharon
I’m sorry to hear that has happened to your son. Seems completely unfair and anyone would be upset because of those circumstances. Can you let us know where you are located? There are some things you can do. email me at peter@dadsonline.com.au
Hi,
Nice article!
My wife and I have had a rocky marriage of 4 years. Things have not worked even through countless counseling appointments. She wants a seperation at this point. We have a 15 month old daughter as well. I want o stay in the marriage and work things out but she says she’s reached a point where she sees no hope. She has a great great support system through family, friends and community. I don’t as all my family is overseas and I don’t confide much in friends etc.
She has been prepared with the idea of separation for quite a few months now but now I feel I’m in the deep end as I’m in a bit of a shock.
For starters I’m in fear of logistics and finances. My wife earns 3 times more than I do and wants to live in a part of the city where rental income is much higher. How will I afford keeping up? She has advised me to get legal advise at some point. I’m incredibly lost as I don’t know the system that well. She has agreed To equal custody at this stage but I fear keeping up with her.
Can you please offer some insight.
Regards
Hi
advice would be great
My wife of 14 years 7 married and i are ready to divorce i am 56 she is 34 we moved to QLD a few years ago and set up two successful companies, I worked 18 hours a day for us to have the money to purchase the first then this business helped pay for the second one. We have Two children 18 mths and nearly 4
Due to my wife saying I would not pass the fit and proper person test we put companies in her name.
December my wife decided she could no longer deal with the children so we swapped roles i look after the children full time and now she runs the business and controls all our money.
when we separate my wife is saying she will not pay any money to us how can we survive, is there anything i can do to prove i am a part owner though not on the paperwork.
How will i and the children move forward as the house with a large Mortgage is in my name and can not get benefits which would leave us destitute within weeks?
from reading other story’s i can see we need a lawyer just how do i survive with my children. is there a fast track to being even financially.
Any information appreciated.
Hi Adrian, Sounds complicated and we are not lawyers. A good friend of Dads Online is and have helped many fathers in the past. Contact Daniel and I’m sure he will access your situation and be able to help you.:
His details are:
Daniel Dalli
RB Flinders Lawyers
M. 0423 729 686
E. ddalli@rbflinders.com.au
Hi my son and wife of 18mths have separated. He had the house for 10 yrs before she came along and now she has a AVO on him and he cannot go within 200mts of the house. She cancelled to rego on his car that was not in her name! can she do that?
Hello Veronica, Can I suggest you contact Daniel (Below) He will be able to assist you with that question.
Daniel Dalli – FAMILY LAWYER
Level 1, 91 William Street, Melbourne Vic 3000
T 03 8391 8411
M 0423 729 686
E daniel@astonlegalgroup.com.au
Hi
My wife and I had conflict last year but we resolved. We moved to Melbourne last year. Everything was going well and i convinced my wife to move back to Sydney due to work and health problem. I came to sydney for work and to look for house. During this process, my wife suddenly stop talking to me and also did not allow kids to talk to me on video or on call.
I am sure her parents must have forced her to do so. Now our marriage nearly ending due to such interference but I am unable to speak or see my kids for past 6 weeks. My wife emailed me to pick my remaining from Melbourne. She doesn’t want to keep any contact but also not allowing my kids to talk to me or meet me if i go to melbourne.
What are my rights in these regards???
HI Jack, That doesnt sound fair at all, you absolutely have rights and can get assistance. Please be patient, it does take time months to sort these things out and once sorted you will feel like it was only yesterday so dont worry.
For good family law assistance from a lawyer, feel free to contact Daniel Dalli, Partner of Aston Legal Group (www.astonlegalgroup.com.au) on either 0423 729 686 or email at daniel@astonlegalgroup.com.au he will be able to assist you. Best wishes, Peter.
Thanks Peter,
Really appreciated for the response.
hi my son & his wife marriage is upside down. there son 13 has been kicked out of school, grades down and most recent fount with his mon cut his arm etc police paragmedic came. the other child 6 has some form of undiagnosed autism. the problem is that the father works full time, feeds and baths children and sees that they go to school etc. he also cleans the house and does the laundry. the mother is home during the day but the minute fathers home she leaves and sometime does not return till the next day. She phones the oldest son to say good nite I luv u and that she leaves because she unhappy at home?? Should she be discussing this with him and not her husband. The mother claims she is sick its always something like I have a tumor, blood in stool, hormones, depression etc yet does not want to take meds etc or let her husband go to doctor visits. She’s just not present in my opinion. My son is fed up and has fears that if he addresses all of this it will hurt kids etc . the mother is a complete story teller about everything and cannot trust anything she says at tis point. Should he put his foot down? He want to separate and supposedly she does too but only if they do it themselves without a Atty. I have talked to her as my concern is the kids, her response is there asleep anyway when I leave at night or she blames her husband for all other things he does not give me $. (when he does let her take care of the bills come to find out she was not paying them. what to do?
Firstly, thinking of all you Dads and blokes out there. It’s hard for all including wives, partners and kids.
I’m in the same boat and have reached a stage of giving up. 15 years married. No resolution to issues in that time. It’s just goes around in circles. I’m far from the best and won’t claim to be. Each cycle I always put my tail between my legs, apologise and make an effort to address the feedback she has given. Thing is it’s not reciprocated. When I explain how I feel, it’s then responded with ‘well it’s your fault’. Recently I put my foot down (nicely) and said no more. Two way street or no way street. Each step I take is a mistake. Each time I open my mouth it’s taken as if I want to fight. I’m so exhausted. I’m at the stage of marking the the call of moving out for 1-3 months to provide space but not seperate. I have now found out that her parents are in her ear plus a friend of hers who I have met once. This friend has provided a character statement of me for her to provide the counsellor. Kind of cranky at that and her parents. Don’t know what can be done if anything, and I’m just over the whole thing. Don’t know if anything can be done but typing this here was a good vent anyway.
Hi Mick, I hear your difficult situation.
Do you think your wife wants to work it out? 15 years is definitely a length of time to try to save your marriage.
I would recommend relationship counselling, it can help.
Once think I would recommend is not to be inpatient, these things can take a while to sort out, so make patience your best friend.
These relationships issues can also cause you to be distracted with your work, try to compartmentalize things so that you keep focused on your work and park your problems in the morning until work it over. Its important to protect your income.
Get some private counselling for yourself, some unbiased to talk to, someone for you.
Look after your mental and physical health and do things some times that you enjoy doing.
Hi I’ve been married for 23 years and the last 4 unhappily, breifly my wife and both can not parent kids so 18 years ago we adopted an Aussie boy at 18 months old we found out he is autistic, it has been a challenging time. It is now thanks to an interfering mother in law who is 75 and has been living in our back yard for 20 years I have had enough. Our home has been in my wife’s family for 60 years and I would hate for her to loose it. Can we saperate and I still pay the mortgage if the property is not sold ? If it is sold however many years later I am intital to my percentage of profit.
Kind regards Mick
Hi Mick, I’m glad you reached out, these things can be complicated and you need to understand your rights so that you get a fair deal. I am not a lawyer but we have a good friend of Dads Online that is and he will be able to assist you. Contact Daniel Dalli, Partner of Aston Legal Group (www.astonlegalgroup.com.au) on either 0423 729 686 or email at daniel@astonlegalgroup.com.au Be paitent and you sound like a fair person. I would also hope that a 75 year old does not get in the way of your relationship? they have no right! see if you can get some counselling or mediation between you and your wife to get back on track.