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Areas of Practice

Separation from your Spouse or Domestic Partner

It is important for both married couples and de facto couples to seek legal advice as soon as possible after separation. In some situations it may be necessary to obtain advice before there is a formal separation. There are also time limits that apply to your situation that could affect your ability to make a claim for property settlement.

In relation to children's issues, it is recommended that any advice or action be taken immediately following separation so that the changes to the living arrangements for the children can occur as smoothly as possible in the circumstances.

Commonly, financial matters and making arrangements for the children are of utmost importance to separating couples. Often the period immediately following separation can be critical to both the arrangements for children and property. It is important that you seek expert legal advice in relation to this as soon as possible.

Married couples and separation

In circumstances where there is a breakdown of a marriage, there is a number of legal matters that need to be addressed:

  1. Divorce
  2. Property Settlement
  3. Maintenance
  4. The living arrangements for the children
  5. Child support

Initiating divorce proceedings alone does not address the remainder of the issues.

De facto Partners and separating

De facto partners do not need to go through the process of divorce. Aside from that, the remainder of the legal matters that need to be addressed are the same.

De facto Partners, subject to certain qualifying provisions, can now initiate proceedings for property settlement under the provisions of the Family Law Act 1975 and in many circumstances are treated much the same as married couples.  

Considerations about your Will when separating from your spouse

Upon separation from your spouse consideration must be given as to whether you need to change your existing Will or have one prepared in circumstances where you do not already have a Will.

There are numerous reasons why it may be critical for you to change your Will upon separation, or have one made, including:

  • If you do not have a Will, the distribution of your estate may not be what you intended. If you die without a Will, spouses and children will share in the estate of a deceased person. If any beneficiaries are under the age of 18 years, the Public Trustee has a duty to maintain the financial interest of that child;
  • Following divorce, any existing Will made by you prior to the dissolution of your marriage will be void in respect of any gifts left to your spouse as will the appointment of your spouse as an Executor of your Will;
  • Often couples will own various items such as real property (a house), motor vehicles and bank accounts as joint tenants. In the event that either party should die, all jointly owned assets will automatically pass to the survivor;
  • In the event you die before issuing proceedings for property settlement in the Family Court of Australia, the administrators of your estate will be precluded from issuing proceedings on your behalf.  This means that your estate will be left with only those items owned solely by you as at the date of your death. 

At Andersons we have a very dedicated Wills & Estates team ready to assist you with such matters. If you have a Family Law issue and want to enquire further about your Will, contact one of our Family Law team members who will be able to refer you to the Wills & Estates department.