If you’ve decided to separate from your spouse, it’s easy to get a bit lost in the separation process. What should you do when, how does it happen, and do you need to involve lawyers or Courts along the way?
In this guide, we’re going to run you through an example separation step by step. In doing so, we hope that you’ll see the elements and decisions along the way and how the separation process works in Australia.
Our (fictitious) client today is Stephen.
Stephen has been living with his partner Amanda for seven years and recently discovered that she was having an affair with an office worker. Stephen is determined to end the relationship.
Stephen and Amanda own a house together with a mortgage in each of their names. They each have jobs and separate bank accounts. They have one daughter. They don’t have any pets.
Stephen does not want to get into messy litigation. He would much prefer a path that ensures that their property is divided fairly between them and their daughter has a meaningful relationship with them both.
What happens next?
Telling your Partner you Want to Separate
Stephen needs to first tell Amanda that he wants to separate.
They don’t need to agree about the separation, and Amanda doesn’t need to consent to it.
Stephen has a few options – he could pack up and leave the house with a note; he could sit down with Amanda and have “the conversation” with her.
Importantly Stephen needs to ensure that, despite being upset about the affair, he remains calm. Throwing all of Amanda’s belongings out onto the road isn’t going to help him have the amicable separation he was hoping for.
Stephen decides to have a conversation with Amanda. They sit down together and he tells her that he wants to separate. Amanda’s obviously upset but understands.
They agree that Stephen will move out for the time being, but their daughter will spend at least three nights a week in Stephen’s care while they finalise things.
Dealing with Their Property During Separation
One of the major tasks during the separation process is to deal with the property of the relationship.
So what is property?
Almost everything you might think of that has any value. So that includes cash, investments, superannuation, vehicles, business interests and of course, their house.
Stephen has three ways he can go here to try and finalise the property distribution with Amanda. He could:
- Have an informal agreement. Here, Stephen and Amanda could just decide between themselves what should happen and agree (say, with a handshake or an email exchange). This would be a terrible idea. Regularly, things get left out that should have been included. There are often disputes about what was said or agreed by whom. Stephen should pick another option.
- Enter into a financial agreement with Amanda. This is a more formal agreement in the form of a contract. It would comprehensively deal with how the property of the relationship was going to be dealt with in their separation. It does not, however, require going to Court, though it may have the benefit of Court enforcement if drafted properly in the event that Amanda breaches the agreement.
- Get a Court order (by consent or otherwise). If Stephen and Amanda are agreed but want an even more formal process to document that agreement, they could apply for consent orders from the Court. The Court will consider whether the arrangement is fair before making the orders. If Stephen and Amanda disagree on how property is to be divided between them, they will first need to make a genuine effort to resolve the dispute between them, including through a Family Dispute Resolution Practitioner, arbitration or conciliation, before proceeding to Court in most instances.
In this case, given they are parting on good terms, Stephen decides to get his lawyers to draw up a Binding Financial Agreement. He accepts that if he needs to enforce it later, it may be a little more complicated and costly, but this step avoids involving the Court, which Amanda clearly said she wanted to avoid doing.
Care of Their Daughter After Separation
So then, how will Stephen and his spouse implement a fair system of care for their daughter going forward?
With rare exceptions, both Stephen and his spouse are presumed to retain equal shared parental responsibility for all long-term major decisions for their daughter, including school, health, religion, and where their daughter lives.
When it comes to decisions about which one of them their daughter lives with and how much time she spends with the other parent (care of the child, or “parenting arrangements” previously referred to as custody), there are few fixed rules in deciding these arrangements between them. The one main thing Stephen and Amanda need to consider when sorting out each decision for the proposed parenting arrangements is “would this be in our daughter’s best interests”. They also need to keep in mind that their daughter has a right to a meaningful relationship with both parents, and to be protected from harm. Any of Stephen and Amanda’s personal wants and needs should fall way down the priority-list when they are deciding on parenting arrangements for their daughter.
And this is exactly how they come to agree on parenting arrangements.
But how do they make that happen?
Much like with property, the most common options are for Stephen and his spouse to document a parenting plan with the help of their lawyers, who may also formalise the arrangements into consent orders which are filed with the Court and then have the backing of the Court’s enforcement if necessary.
Stephen was comfortable with a documented agreement when it comes to property. However, after a lot of thought he was a bit uneasy without a Court order when it came to the shared parenting of their daughter.
So, after some discussion Amanda agrees, and Stephen asks his lawyers to draw up the documents to finalise parenting arrangements with consent orders from the Court.
Things that Might Go Wrong During the Separation Process
We appreciate not all separations go as smoothly as we’ve described above.
Sometimes you won’t be able to agree on anything with your spouse. Sometimes negotiations break down on key topics: pets, heirlooms, sentimental property items and children. Inevitably then somebody will have to go to Court to finalise the separation. The process then can get expensive and take a long time.
Sometimes, after agreeing with your spouse about what should happen, they don’t hold up their side of the bargain, or perhaps you might find that they had property they had hidden from you. Then your choices are to just let it slide, renegotiate with them or if your trust has taken a hit you might need to ask for the Court’s intervention.
There is no one size fits all situation here, and everyone’s “best” response to this kind of adversity is going to be a bit different. In our experience, the people who can find a way to get through the process faster and with less Court intervention, are those who can most often move on from their separation faster and more happily.
Wrapping Up the Separation Process
So let’s revisit how things have gone with Stephen. He has:
- Told Amanda he wanted a separation;
- Agreed to document a binding financial agreement with Amanda, which will deal with the ownership of their house, sharing of debt, cash, superannuation and other property in the way they have agreed;
- Agreed with Amanda about the ongoing shared care of their daughter, which they have agreed will be filed as consent orders with the Court, which are then enforceable.
That is the separation process in a nutshell.
You’ll notice that there was no “divorce” here – that’s because Stephen and his spouse weren’t married.
With these things done and the separation process complete, Stephen can start to move on with his new life.