Going through a separation can be a complicated and stressful
process.
Knowing what you are entitled to in a separation can help to
make things smoother, both in the short-term and the long-term to
help ensure your best interests are taken care of.
It is important to understand the rights and entitlements of
each individual during the separation process, regardless of your
particular circumstances.
Separation is the dissolution of an intimate partnership,
including marriage and de facto relationships.
It’s important that following this split you and your
partner make some immediate decisions about any practical issues
concerning children and/or any assets such as property and
debts.
Some things to consider are:
- Are there any outstanding bills or debts?
- Who will stay living in the house?
- Is there a mortgage? Who will pay the rent?
- What will happen to any joint bank accounts or credit union
accounts? - What will happen to any shared furniture, cars, or any other
property?
It may be hard to agree on any of these things at once but if it
is possible to come to a temporary agreement before seeking legal
advice it would help greatly for positive long-term outcomes.
Key Points
- Seek legal advice
- Know your entitlements
- Consider the long-term outcomes
Seeking Legal Advice when wanting to know what am I entitled to
in a separation
Separation is a legal process and it is strongly recommended
that you seek the assistance of an experienced family law
solicitor.
There is no ‘one size fits all’ approach when wanting to
know what am I entitled to in a separation.
Each relationship is different and therefore each outcome will
be different in a separation.
It is important to have legal advice tailored to your situation
to fully understand your rights and entitlements, or the rights and
entitlements of your former partner.
Justice Family Lawyers can provide you with
comprehensive advice to help ensure that you are getting the best
outcome possible.
Following a separation, you may not need to appear in court to
make arrangements for dividing property and finances, however, you
will need to apply to the Court for a Divorce order if you seek to
end your marriage.
An experienced family law solicitor can assist you through
dispute resolution protocols if no agreement can be made
autonomously.
Dispute resolution includes a range of services that are
designed to assist in the resolution of issues that may arise from
separation or divorce, and are intended to improve the relationship
between parties during these difficult conversations.
Common practices in dispute resolution include compromise and
discussion, either with the help of a lawyer or independently.
What Am I Entitled To In A Separation?
In Australia, the family law system recognises that each party
involved in a separation is entitled to a ‘just and equitable
share’ of the matrimonial assets.
When determining what property and/or assets each person is
entitled to there are a range of factors that are to be
considered.
These can include each person’s financial and non-financial
contributions to the partnership and will be taken into
consideration during the separation.
These contributions can include:
- Household duties
- Childbirth
- The care of any children
- Vocational or technical skills used during the partnership
Following the dissolution of a partnership, both you and your
ex-partner are entitled to live in the shared home regardless of
the name on a rental agreement or the title of the property.
It is unjust if you are forced to leave if the property is not
in your name, the only exemption would be if the court has placed
an order for you to do so.
These orders are called ‘Sole Occupancy Orders’ and are
only put in place in severe circumstances.
If you have to move out it will not affect any entitlement of
your share of the property and any rights and entitlements that you
have accrued during the relationship will remain intact.
Under sole occupancy, means that one party can remain living in
the house until the property has been divided.
You and your former partner are also entitled to enter into a financial agreement with the assistance of
legal advice from an Australian property settlement lawyer, you
cannot enter into this agreement without legal
advice.
Under Part VIIIA (marriages) or Division 4 of Part VIIIAB (de
facto relationships) of the Family Law Act 1975 (Cth) a financial agreement
is a contract between two or more parties and will include explicit
agreements surrounding the division of property, finances,
liabilities, superannuation, and spousal maintenance.
Also read: Conciliation Conference: A Guide to Resolving
Family Law Disputes
Is There a Difference in Entitlement When Couples are Separated
but Not Divorced Australia?
Yes, there are some key differences in entitlement when couples
are separated but not divorced in Australia, compared to couples
who have formally ended their marriage:
Property Settlement
- Divorced: You have 12 months from the date
your divorce is finalized to apply for a property settlement
through the courts. After that deadline, you’ll generally need
the court’s special permission to proceed. - Separated: There is no formal time limit for
separated couples. However, it’s highly advisable to finalize a
property settlement promptly. The more time passes, the harder it
is to prove asset ownership and contributions, increasing the risk
of disputes.
De Facto Relationships
- Divorced: The same 12-month time limit applies
to de facto couples who wish to apply for a property settlement
after officially ending their relationship. - Separated: You have a 2-year timeframe from
the date of separation to apply for a property settlement if you
were in a de facto relationship.
Spousal Maintenance
- Divorced: In general, once a divorce is
finalized, spousal maintenance obligations may cease unless a
specific arrangement was made in your divorce settlement. - Separated: A spouse may still have an
obligation to provide financial support to their separated partner
if there is a demonstrated need.
Superannuation Splitting
- Divorced: You can apply to split
superannuation with your former spouse after your divorce is
finalized. - Separated: You can generally only split
superannuation once a formal divorce has occurred.
Considering the Long-Term Outcomes
It is not only important to consider what you are entitled to as
a result of your separation, it is also important to consider the
long-term outcomes of the separation.
It is important to consider the legal and financial implications
of the separation on your future, as well as considering emotional
wellbeing, children or any other relevant factors.
Having the right legal guidance can help to ensure a fair
process and a just outcome that considers everyone involved.
At Justice Family Lawyers, we are experienced in helping
individuals through the separation process and work closely with
our clients to ensure the best possible outcome for them. Our team
can provide you with expert advice to help ensure that you are
fully aware of all your entitlements, as well as offer assistance
through the entire process. What you are entitled to in separation
can be complex and making sure you have the right legal advice is
key.
No two separations are the same. It is important to understand
what am I entitled to in a separation and consult with a
professional to determine the best legal options so that your
interests are best represented.
Justice Family Lawyers are experienced and
dedicated to helping individuals and families during the stressful
separation process.
Get in touch today to learn more and find out how our team can
help you.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
#Entitled #Separation #Divorce
