What is the marriage separation process?

By far the most common question we get asked in our early discussions is something like “what should I do now?”. Of course you can call us to have a discussion regarding separation legal advice if you prefer, but this guide to separation is designed to show you how the process works, how to protect yourself along the way, and what each step is likely going to involve.

Specifically, we’re going to look at:

1. What’s the marriage separation process in Australia?
2. How does separation commence, and some things to think about if you’re considering separating from your spouse?
3. Dealing with the personal elements of separation – stress, family and friends, counselling and the like.
4. Property and money – how this is dealt with during separation and how to address the “who gets what” dilemma?
5. Children – how to sensibly and lovingly ensure that any children in your relationship are cared for going forward.
6. Aftermath – making your new start after separation

There’s a lot to get through, so let’s start your new beginning

So What Do We Mean by “Marriage Separation Process”?

Separation is simply the word we use when people stop living together as a couple. There are a few ifs and buts to that statement which we talk about later, but that’s the thrust of it.

So technically you don’t need to be married to become separated, but we’re using the phrase here to describe (without too many extra words!) the steps to bring a serious or long term relationship, whether married or de facto, to an end in a comprehensive but fair way for all involved.

With marriage, that might or might not include divorce, but we’re not talking about that here.

With that in mind, the marriage separation process in Australia involves:

1. The initial decision and conversation;
2. Arranging the necessary supports and advice;
3. Working to reach agreement about property and parenting;
4. Formalising and effecting the agreement;
5. Making your new start.

Let’s deal with each of these in turn.

Starting the Marriage Separation Process – The initial decision and conversation

Important Note – if you or your children are a victim of domestic violence or are concerned about safety, then you must get specialist advice to ensure that you and your kids are safe. While this article contains general information it is not written for those in a domestic violence situation. If you fall into this category we can absolutely help you, but it would be best to call and arrange an urgent phone appointment with us.

The separation process begins with a decision, by one person or both, to bring your relationship to an end and stop living together as a couple. Once the decision is made it will usually be followed by a conversation where you communicate your decision to separate. People communicate this in many ways, sometimes in counselling, sometimes in an email or letter, other times couples can sit and discuss this difficult decision face to face.

Being “separated” doesn’t require both people to agree to the separation. As you might expect, it’s common enough that one partner wants to separate and the other does not.

In some cases, you can be “separated” and still be living under the same roof. That can get complicated for all the reasons that you might suspect, so we’ll talk a bit more about that below.

A separation process might start at any time, and does not require lawyers or a Court to make it happen. However, once you’ve made the decision to separate it’s often a good idea to get some initial advice so that you can ensure that all the aspects of your relationship are properly dealt with and make your new start.

Looking after Yourself During Separation – Arranging Support and Advice

Separation is inevitably a stressful process. It can be hard to know what to say to whom, what’s “normal” when going through separation, and where to find help for the issues you might face along the way.

Everyone is going to react differently to different events throughout the separation process. Inevitably though there will be some pressure points. For some it’s the anxiety around what your financial future will look like, for others it’s thinking about how to deal with the dog you bought together. For that reason it can be helpful to think a bit in advance about how you are going to put together your support in the main areas of life, and who you will (and won’t!) turn to as a confidante.

While we won’t pretend that it’s easy, try to ensure that you consider the following along the way:

• Financial health – while it’s important that you get legal advice before making decisions about money it’s also important that you try to plan ahead for your financial health and security. This can be particularly difficult if you have been supported by your former spouse financially, but ignoring it won’t make it go away. We usually recommend that our clients engage with a trusted accountant and financial advisor so that they have support to plan for their future. This advice can also help you consider how best to use the assets you receive from your financial settlement.
• Mental health – this one is probably obvious, but there are many support structures in place for both men and women who are struggling with the mental health aspects of separation. Some people might be concerned that getting counselling could affect their chances of getting time with their children or how they might be perceived in a dispute, but that’s not necessarily the case. In fact showing that you can acknowledge and seek out help when you need it only bolsters your position in a dispute. We usually recommend clients speak with their GP in the early stages of separation and obtain a mental health plan, if appropriate, so that they can access a psychologist or counsellor to help manage the difficult emotional moments.
• Physical health – the separation process can take time. Even people who separate on good terms and reach agreement about division of assets quickly can take about 6 months to formalise and action their settlement. If you can’t reach agreement quickly the negotiation period could take many months, and it can be easy to forget to look after your physical health as the separation process drags on. Always remember that there will be an end to the separation, and when you get there you’ll probably want to hit the ground running into your fresh start. Don’t let your health slow you down.
• Relationships – we’d caution against oversharing your separation process ups and downs with too many people. If things take months to finalise, it’s quite refreshing to have some friends and family with whom that doesn’t become the main center of conversation. Of course family and friend support is important too, but just consider in advance who you want to bring “inside the circle” for your support along the way. We often find that clients become fatigued with “friends’ opinions” if they involve too many people. So, find friends or family that you know will offer you their opinion when you seek it, but perhaps not those who like to offer unsolicited opinions.
• Legal advice – given the complexity of the process, having objective but compassionate legal advice throughout the separation process can help you avoid concerns that you might be forgetting something or inadvertently setting yourself up for problems in the future.

Money and Property During Marriage Separation

After a relationship breakdown one of the major points of discussion (or argument) is often going to be about splitting assets, or “property”.
Importantly, you don’t have to obtain a divorce to secure a property settlement – a property settlement can be at any point during the separation process, whether or not you were married or in a defacto relationship.

What counts as “Property” during Separation?

Property gets a pretty broad meaning when it comes to the separation process, so if you can think of it and it has value then there’s a good chance that it’s property. That’s going to include the following whether they are held in joint names or held in just one person’s name:

• Cash, shares, term deposits and other investments;
• Insurance policies if they have a dollar value;
• Superannuation;
• Vehicles (cars, caravans, trailers and more);
• Personal effects such as watches, jewellery and the like;
• Businesses and their assets, including interests in family trusts that might be part of a business structure; and
• Your house and any investment properties.

Of course, if we deal with your property we also need to consider your debts, that means things like:

• Credit cards;
• Mortgages;
• Personal loans; and
• ATO liabilities.

At what stage should your sort out your property settlement?

Generally, we’d suggest you try and get this done ASAP.

This is for a few reasons:

• There are some time limits to make your application to the court for a property settlement, and missing them usually results in more legal costs and headaches. Normally that limit is 2 years from the date of separation for a de facto couple, or 12 months from the finalisation of your divorce, if you were married – but this is an area to get advice on just to be safe, because the “date of separation” is sometimes as clear as mud.
• The sooner you can get finalisation the better it is for your overall personal health and wellbeing.
• Very practically, memories fade and assets move around. Money gets spent and people’s situations change – the simplest path is to deal with things when they are roughly as you remember them to be.

Do you Actually Need a Court Order for a Property Settlement during Separation?

Strictly speaking you don’t actually need a Court order to divide your property.
BUT, that said, there are many good reasons why you should get a court order to formalise your agreement.

These include:

• A court order will formalise your agreement and bring your financial relationship with your ex to conclusion. It acts like an insurance policy, meaning once you have your agreement formalised your ex can’t come back for another bite of the cherry (in most circumstances) and seek a further property settlement in the future.
• Some assets can’t be divided without a formalised agreement, for example superannuation.
• Formalising your agreement means that you can often avoid certain taxes or duties, such as stamp duty where a property is transferred from one person to their ex.
• If someone defaults in carrying out the agreement you will have options to remedy the breach or enforce the agreement.

With your lawyer’s help you can document your property settlement with your former spouse and get orders made by the Court, this is called a consent order and is made under the Family Law Act (Cth) 1975. As part of the process the Court will consider whether, in its view, the agreement reached is “fair”. Once the agreement is approved by the Court you have a binding property settlement. This is the way the vast majority of people formalise their property settlement in Australia.

That said, some people wish to avoid Courts entirely, and so other options exist too.

You might, for example, reach an agreement that might not fit well within what a Court would deem to be fair, or reach an agreement that consists of some unusual aspects that make formalising the agreement by a consent order more difficult. If this is the case parties can enter into a Financial Agreement under the Family Law Act (Cth) 1975. Think of this like a contract – it’s still legally binding on both parties, but it is not scrutinised by the court and the consequences of failing to honour the agreement are different from a consent order.

While there are other informal options, our suggestion is almost always to formalise your settlement agreement with a financial agreement or a consent Court order. This brings your financial relationship with your ex to an end, and means that you can really move on to your new beginning with peace of mind.

Agreeing about How Children Will be Cared For After Separation

Children are, of course, one of the most challenging aspects of the separation process.

While it can be difficult, the best long term decisions are usually made when parents focus on the interests of the child in question. Given the significant impact that your separation is already going to have, we encourage this approach.

Who Gets to Make Decisions about the Child’s Future?

The fact that you’re separated doesn’t mean that one parent gets to decide major things and the other doesn’t.

After separation, each parent of a child generally retains joint responsibility for the major decisions of that child’s life – school, health and religion.

However, just because you have joint responsibility it does not automatically mean that you get equal time with your child.

“Custody” Arrangements

Although lawyers don’t use the word “custody” anymore (but most people do…), many parents believe that the starting point for parenting arrangements is a 50/50 time split.

BUT there are no concrete rules about what arrangements are normal, and parents are free to explore any number of different solutions for parenting time that can meet the needs of their family going forward.

How Are Parenting Matters Agreed?

Reaching agreement about parenting arrangements can occur with one (or more) of the following supports):

• Direct discussion between the parties.
• Mediation.
• Lawyer negotiation.

Once agreement is reached about the parenting arrangements you have a few options available to formalise the agreement.

As before with property one option is to get your lawyer to write up a parenting agreement (called a “parenting plan”) which will detail the arrangements that you and the other parent have agreed to, which is then signed by both of you. A parenting plan is probably the most common way separated families formalise parenting arrangements. A parenting plan is not legally enforceable but it can be relied on in court proceedings if needed as evidence of the agreement that was reached.

If you want a bit more clout with your parenting arrangements (and the ability to seek court remedies if there is a breach) then you can seek to have your agreed parenting arrangements made into consent orders. Your lawyer can help you to do this.

Can The Marriage Separation Process End Up in Litigation?

Yes.

While we’ve focused here on the ways in which you can separate amicably with your spouse, unfortunately the separation process isn’t always done by consent.
If you are unable to agree on some or all of the aspects of your separation, then there are a number of ways to go forward.

Before most matters end up in court parties are usually advised to try mediation. This is where an independent facilitator (the mediator) helps you and your former spouse discuss the issues that are holding up finalisation of your agreement and encourages a path towards settlement. Mediations can often lead to resolution of remaining issues, although not always.

If mediation and other negotiation (such as via lawyers) doesn’t result in an agreement of course, you can go to Court. Court is expensive and can take a long time. Beyond that you can’t always predict the outcome. However, sometimes it is the only option to ensure that the outcome is feasible for you. You should be assured, however, than in family law the vast majority of couples are able to negotiate a property settlement and parenting arrangements either directly between themselves, with the assistance of a mediator or with lawyer assisted negotiations.

Your New Start - What Happens After Your Separation is “Done”?

OK so you’ve formalised your property settlement and parenting arrangements and you’re ready to shake off the past and move forward – great!

Of course, you need to make sure that you comply with your end of the deal. Things can go south very quickly if people fail to comply with property or parenting orders. If your ex partner fails to hold up their end of the deal then you should give your lawyer a call immediately.

But assuming everything is going well, it’s time to do some serious thinking about what your next phase is going to look like (which you’ve probably been doing anyway).

Remember – you’ve got a life ahead of you, and it’s time to live it.