Property arrangements
Australian Family Law courts prefer the “clean break” principle when managing the division of the assets of the marriage or de facto relationship. This means the court prefers the division of a couple’s property to occur once and for all. Other periodic payments such as spouse maintenance and child support payments are separate matters not strictly included in the ambit of “property division”, however, the matters do intersect.
It is important to note that there is some difference in how Family Law deals with the property of married couples and de facto couples. With de facto couples, some "gateway" provisions may influence whether your matter is dealt with as a family law matter or under other civil law legislation.
Family Law property settlements follow a 4-step process:
Family Law Property Law settlement comes down to dollar values and is essentially an accounting exercise. In order to reach a fair settlement it is necessary for each side to present all facts and figures of their financial and property situation. Court will make inferences where a party does not properly disclose facts and figures or is suspected to not have engaged in proper and full disclosure.
Spouse maintenance
Spouse maintenance is against the principle of the “clean break” and therefore courts would rather see a fair property settlement than have one spouse dependent on periodic payments by the other, however, in some circumstances it will be necessary to agree to maintenance arrangements or obtain maintenance orders. Such orders tend to be temporary and only in place so long as it takes for the dependent spouse to regain financial independence. Factors such as earning capacity, age and care requirements of children are factors the court may consider, among others.
For information on Child Support Payments please refer to Parenting Matters.
Practical tips for when separating from your partner and managing the property and financial side
Self-care is extremely important immediately after separating from your partner. While you navigate your new life, don’t walk the path alone. Connect with friends and family even if you are not feeling your best. Seek out your most understanding friends and family for support and get professional emotional support wherever possible. Everyone will have an opinion, so it is important also to seek out advise and opinions that are calm and balanced.
Tip: Lawyers are focused on getting you through the legal separation. The emotional aspects of separation are best managed through your non-legal support. If you need to emotionally debrief, seek out your emotional support people, discuss the matter and ask them to narrow down and write down the legal things you need to discuss with your lawyer. If you can, think about what it is you want to achieve overnight. Make tweaks to your list. Then only take that list back to your lawyer. This will not only save you money, but ensure your instructions to your lawyer are clear, concise and not clouded by your feelings.
On the practical side, here are a few tips about what to do immediately after separation:
Take copies of your important documents with you. These include your birth and marriage certificates, financial documents for both you and your partner including pay slips, tax returns, bank statements, superannuation statements, and registration certificates and insurance certificates for your house, car, and other assets. Also take any legal documents pertaining to you such as wills and business contracts.
Take control of your passwords and redirect your mail. Change passwords as necessary particularly for your bank account statements, email accounts and phone account.
Make a list of the assets in the house and of other assets you own not in the house. You can even take photographs of the more valuable and considerable assets such as vehicles, your partner’s important documents (making sure they are legible).
Make a list of finances and debts. If you or your partner or both of you have interests in businesses, joint ventures, trusts or partnerships, make sure you make copies of all documents and make sure the copies are legible. If you are not sure a document is important, rather take a copy than not take a copy.
Copy your computer hard drive onto an external hard drive and keep it in a location other than your and your home or the home you share or previously shared with your partner.
Contact your bank to block large withdrawals of money from any accounts you hold jointly with your partner.
Don’t withdraw large amounts from joint accounts yourself. You are allowed to draw amounts you reasonably need to pay for new, modest accommodation and living expenses. Just keep records of what you have spent the money on.
Keep a diary of events of your separation. You will want to record key incidents and changes made to your living arrangements.
If you have fears for your personal safety, you should report to the police and apply for a protection order.