Lawyer responds to the top five questions about separating from a partner
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If you have recently separated from your partner, whether you were married or in a de-facto relationship, it is important to understand how to navigate a separation.
The family law system is a discretionary jurisdiction, which often makes it difficult for parties to understand without legal assistance.
Elisa Shain from RMB Lawyers Family Law division shares answers to the top five questions clients ask when separating from a partner.
Is a divorce the same thing as property and parenting matters?
It is very common for parties to confuse "divorce" with other facets of a separation. A divorce is a stand-alone process that grants the legal dissolution of a marriage.
In addition, a separation entails the parties ending their financial relationship by separating their financial assets (and liabilities).
Where parties have children, they will also need to reach an agreement as to the spend time arrangements of the children, focusing on the best interests of the child.
Is a 50/50 split of assets the baseline?
It is a common misconception that there is a starting percentage division when negotiating property settlements.
The Court calculates property settlements by assessing the contributions of the parties throughout the course of the relationship, including both financial and non-financial contributions, as well as determining whether either party requires an adjustment for their future needs post-relationship.
Further, the asset pool is determined at the date of settlement, not the date of separation.
Do children's opinions count?
The weight of children's opinions in parenting matters are tricky. Whilst the overriding consideration in parenting matters are determining what is in the best interests of the child, this does not mean that the children get to decide themselves what the arrangements will be.
The Court needs to be satisfied that the child can make an informed decision and often an Independent Children's Lawyer will become involved in a matter to assist the child's voice to be heard.
What happens to the dog?
Pets can often be a contentious issue in separations. Whilst pets may feel like children, in family law they are treated as property.
Courts have limited capacity to deal with pets' living arrangements post separation, which means that in circumstances where parties cannot facilitate shared arrangements for the pet, one party may be forced to mourn the loss of a family pet as well as the loss of their relationship.
How can I prepare?
If you have arranged to consult a family lawyer or are thinking about it, it is important to gather your financial disclosure documents to inform your lawyer of the relevant property pool that requires division, as well as have information relating to the current care arrangements of any children.
Majority of matters do not proceed to Court and can be resolved by way of negotiations.
Going through a separation can be a highly emotional experience, but RMB Lawyers are here to assist you through this process with meaningful and practicable advice.
RMB Lawyers has a team of lawyers who specialise in family law. If you would like advice, freecall 1800 681 211 (Monday to Friday 8.30am - 5pm) or send an email to rmb@rmblawyers.com.au.
