Thinking about separating? Some food for thought…

Separating can be one of the most stressful times in a person’s life. In times of emotional turmoil and distress it can be difficult to think clearly about what is really in your best interests. Here are some points to consider:

  1. Separation in family law is the end of a marriage or a de facto relationship. If separation is disputed by the other party, it is sometimes a fact which needs to be proven in Court proceedings. To prove you have separated, it is a good idea to confirm your separation via a written letter, email or text message to your spouse or former de facto either at the time of separating or shortly after.
  2. Consider what measures which you can or should take to protect you and your children from exposure to family violence or abuse. If you have safety concerns you should urgently consult one of the experienced family lawyers at Carr & Co to obtain advice about the measures you can take to protect you and your children, such as the possibility of obtaining a restraining order.
  3. Think carefully and consult with your spouse or former de facto about how your children, family members, colleagues and friends are informed about your separation.
  4. Keep a record of any incidents, communications, important events or transactions between you and your spouse or former de facto with respect to your children or property-related matters in the lead up to and after separation. It is very helpful if you need to recall events often many weeks or months later if you have kept a record, such as in the form of a diary, log or calendar.
  5. As the saying goes, “don’t air your dirty laundry”. Be very careful about what you post about your spouse or former de facto, their family members or friends or their new partner on social media. Any of your social media posts could potentially be attached to an affidavit and used as evidence in Family Court proceedings. This type of evidence can often be very damaging to a party’s credibility and their case. There have also been two recent cases in the District Court and Supreme Court of Western Australia where the payment of damages has been ordered and costs orders made against two parties who took to social media to make defamatory comments about their spouse and ex-girlfriend respectively.[1] The damages ordered were $12,500 and $48,404 respectively.
  6. You should also consider carefully the content of any emails or text messages you send to your spouse or former de facto. As is the case with social media posts, emails and text messages can also be attached to an affidavit and used as evidence in Family Court proceedings. If you are going to communicate with your spouse or former de facto make sure that your language is not emotive or aggressive and keep your communications focussed on how the issue at hand can be progressed, rather than dwelling on what has happened in the past.
  7. Do not engage in destructive behaviour. Whilst you may find it momentarily satisfying to cut up your spouse’s suits or destroy family photographs the satisfaction is short-lived and overshadowed by the negative response from your spouse or former de facto. If you dispose of or damage any valuable asset which would form part of the pool of assets available to divide, you may be held accountable for the damage. Getting caught up in a moment of frustration or anger could prove to be very costly.
  8. Change the accessibility to your computer and online accounts. Even if you think that your spouse or former de facto does not know your passwords or how to access your online accounts, resetting any access codes or passwords is relatively simple and can make sure your personal information remains confidential.
  9. Make an appointment to consult one of the experienced family and divorce lawyers at Carr & Co to obtain some tailored family law advice. Each family has a different set of circumstances and there is no “one size fits all” solution to a family law dispute. You should take affirmative action to find out what your entitlement to a property settlement is, what arrangements are appropriate for your children and what spousal/ de facto partner maintenance and child support you may be entitled to receive before you separate or shortly afterwards. You may need to take urgent action to freeze any joint accounts or to take legal action, if a property is held in your spouse or former de facto’s name, to prevent its sale or dissipation before a final property settlement occurs.
  10. If you are going to move out of the former matrimonial home make sure you are thorough about removing all of your belongings. It is often the case that parties leave behind treasured possessions or documents which it later becomes very expensive or difficult to recover.
  11. Do not engage in petty behaviour, such as cutting off the electricity at the former matrimonial home where your spouse or former de facto is living or removing your spouse or former de facto or even your children from your private health insurance policy without first providing notice. There may need to be some changes to the way that mortgage or loan repayments, household expenses, utilities and family costs are paid after a separation occurs. Any action you intend to take should be discussed with your spouse or former de facto and your lawyer prior to being taken. You should also consider the impact that your actions will have on your children, who may be living your spouse or former de facto.
  12. Make some enquiries about what assets, liabilities and superannuation entitlements you and your spouse or former de facto partner have. If you consult a family lawyer to discuss your property settlement entitlements they will be greatly assisted if you can provide details of the following:

    a. The address of any real estate which is owned by you or your spouse or former de facto.
    b. The name(s) of the registered proprietor(s) of any of real estate and an estimate of its approximate value.
    c. The full name of and a list of any assets or liabilities owned by any company in which you or your spouse/ former de facto have an interest, either as a director or shareholder.
    d. The full name of and a list of any assets or liabilities of any discretionary family trust in which you or your spouse/ former de facto have an interest, either as a guardian, appointor, trustee or beneficiary.
    e. The full name of and a list of any assets or liabilities of any unit trust in which you or your spouse/ former de facto have an interest as a unit holder.
    f. The debit, credit and loan accounts which you and your spouse/ former de facto conduct either in Australia or overseas, including:

    • the bank or financial institution where each account is conducted;
    • the name of the person or entity in which each account is conducted; and
    • the current balance owing on or invested in each account.

    g. Any of the following owned by you or your spouse/ former de facto:

    1. businesses;
    2. shares or investments;
    3. life insurance policies with a surrender value;
    4. motor vehicles;
    5. boats and marine craft;
    6. furniture and contents;
    7. tools of trade, equipment and machinery;
    8. artworks;
    9. antiques;
    10. jewellery; and
    11. any other assets of significant value.

    h. Any overdraft, redraw, credit or borrowing facilities which you or your spouse/ former de facto can access and the limit of any such facilities.
    i. The name of each superannuation fund in which you or your spouse/ former de facto have accrued entitlements and the current value of the entitlements in each fund.
    j. The value of any interest which you or your spouse/ former de facto have in any deceased estate(s).

  13. Collate and take copies of documents which relate to the assets, liabilities and superannuation entitlements you and your spouse or former de facto have and what each of your respective sources of income are. Often parties involved in a family law dispute spend significant sums of money attempting to obtain copies of documents from the other party which were readily accessible to them prior to their separation. Whilst parties are obliged to give disclosure to each other of documents relating to their financial position, it is not always the case that all parties readily comply with their disclosure obligation.
  14. Go to your bank and your accountant to obtain what information you can about your financial position. Discuss with them your changing circumstances and what action they suggest you take. Don’t be afraid or ask questions and to demand answers.
  15. Consider your immediate living arrangements and support. Where will you live? How will you meet your living expenses? The family lawyers at Carr & Co can provide you with legal advice about issues such as:
    a. occupancy of your home;b. spousal or de facto maintenance;c. child support or child maintenance; andd. funding to meet your legal expenses.

[1] Dabrowski v Greeuw [2014] WADC 175; Wilson & Ferguson [2015] WASC 15

Categories: Articles & News, Perth Family Lawyers Information, and Separation and Divorce.