Legal – Navigating your separation

NAVIGATING YOUR SEPARATION…

How to swim and not sink

A MARRIAGE OR RELATIONSHIP ENDING IS COMMONLY UNDERSTOOD TO BE ONE OF THE TOP THREE MOST TRAUMATIC EVENTS THAT A PERSON CAN EXPERIENCE. THE EXPERIENCE CAN BE LIKENED TO BEING CAUGHT IN A RIP IN THE OCEAN.

Unsure as to direction, uncertainty of your thoughts and capacity to move, combined with periods of treading water and calm stillness.

Just as you cannot control the movement of the ocean, there are aspects of your separation or divorce which cannot be controlled. Those aspects are the processes and procedures put in place by the various pieces of law and rules of court as well as the conduct, responses and reactions of the other party involved in the separation.

What you can control however, is knowledge. Obtaining advice as early in the separation process as possible is the key to being able to make sensible and logical decisions about how to wade into that deep water and make it out safely. Advice should be sought from an experienced family lawyer, not from trusted friends and loved ones who, whilst well intentioned, are not legally trained or experienced in the practice and procedure of Family law.

A good family lawyer is one who is armed with both book smarts and street smarts to ensure that decisions are made in line with the law, but also the most practical and sensible solution for your circumstances.

In this article we will touch on the very basics of the division of assets after separation including how the Court determines property settlement disputes if you cannot reach an agreement. In Australia after separation there is an entitlement to a “fair” or “just and equitable” division of assets of the relationship. It is the question of what is

ABBI GOLIGHTLY Partner OMB Solicitors

Abbi has been named a “Recommended Family Lawyer” and “Leading Parenting Lawyer” from 2016 - 2021 commendation by the independent Doyles Guide.

Lvl 1/9 Seabank Ln, Southport QLD 4215 P (07) 5555 0000 E info@omb.com.au www.omb.com.au

“fair” that causes the most dispute. Sometimes it is fair to not divide the assets at all, meaning that they “lie where they lie” and each party simply keeps what they have in their own name. This is more common in short relationships and where there are no children.

However, if a division of assets is necessary, then the following steps are used by lawyers and the Court to determine what is a “fair” division of assets:

WHAT IS THERE TO DIVIDE?

First things first we need to identify what there is to divide. Assets can include real estate, bank accounts, cars, superannuation, shares, investments, cash, furniture, jewellery and the like. Liabilities are also considered including mortgages, tax debts, personal loans, credit cards amongst other things. It is the net assets of the parties that are considered for division.

WHAT DID EACH PARTY PUT IN OR CONTRIBUTE TO THE RELATIONSHIP?

These contributions are not just monetary contributions. Non-financial contributions toward the care of children and the home are equally as relevant to the division of assets, particularly in longer relationships. Financial contributions are assessed across the entire relationship including any periods post separation.

WHAT ARE THE NEEDS OF EACH OF THE PARTIES LOOKING INTO THE FUTURE?

At this stage we look at matters such as the health of each party, their income and earning capacity as well as whether either of the parties have the care of children of the relationship who are under the age of 18. If one party has higher “needs” because of any or all of these factors, then there may be an “adjustment” away from their contributions based entitlement to ensure that they are able to move forward into the future on a level playing field with the higher earning spouse.

FINALLY, IS THE OUTCOME (A) PRACTICAL AND (B) FAIR AND REASONABLE?

This is the last and most important step in property settlement as we need to ensure that the outcome either being ordered or agreed upon is capable of being given effect to and will ensure both parties are able to move on financially. If you can seek advice prior to separation, it is a great idea. When you are armed with knowledge about what information is needed and the processes involved, then you can make informed decisions. These processes are not just legal but practical also. OFTEN OVERLOOKED ARE SIMPLE STEPS THAT CAN BE TAKEN TO ENSURE MAXIMUM BENEFIT FROM YOUR LEGAL ADVICE AND TO ENSURE PERSONAL AND ASSET SAFETY. SOME KEY THINGS TO REMEMBER ARE:

1. Ensure that you have appropriate supports in place in relation to managing your emotional health during your separation. Counselling or psychological assistance is nothing to be ashamed of and will ensure you are able to be clear and focused in your decision making through out your legal proceedings. 2. Whilst your lawyer can provide assistance, they are not trained to provide therapeutic support and to be frank, are considerably more expensive than a therapist! 3. Keep a diary or journal of events and discussions. This will help you remember if you are asked by your lawyer about historical events.

4. Keep receipts for any significant purchases and ensure that you transact through your bank accounts rather than cash, in order to prove contributions. 5. Ensure that any physical mail that you may receive is redirected to a safe postal address (get a PO Box if needs be).

6. Consider your accommodation needs – including for the children. If you are concerned about safety, then the Police should be contacted, and steps taken to ensure your safety as a priority. 7. Consider your financial position and establish separate bank accounts, make sure you are aware of your financial obligations, when bills are due, whose name bills and accounts are in and if needs be ensure that you are authorized on these accounts.

8. Ensure your technology is safe by changing passwords and disabling any shared Cloud based storage. 9. Collate copies of important financial records such as tax returns, bank statements, business financial records, trust deeds and superannuation records (including for selfmanaged funds). 10.Consider instructing your bank to insist on “two to sign” on joint accounts with significant balances such as mortgage redraw facilities and overdrafts.

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