If You Have Separated or are Thinking About Separating – See us For Legal Advice
Separation
- If you have separated or are thinking about separating, it is a good idea to get legal advice early on. Then you will know the implications of this change (or potential change) in your circumstances.
Property
- There are some common misconceptions about the division of relationship property. For example, one partner or spouse may refer to property in their name as “my property” and believe that it will remain their property after separation. They may be surprised to find out that the property is in fact relationship property and it will need to be included in their relationship property division. Talk to us to find out what property is relationship property or whether any property is able to be claimed as your separate property.
- Once you have been married, in a civil union or a de facto relationship for three years, there is a presumption that all relationship property and relationship debts will be divided on a 50:50 basis. There are some exceptions to the general rule, such as when you have a Contracting Out Agreement (also known as a Pre-nuptial Agreement). We can advise you on whether the general rule of equal division will apply or whether you may qualify for an unequal division of property.
- You will also need to consider what will happen while you are in the process of dividing your property. You may need to decide who will stay in your family home, who will be responsible for mortgage payments and other outgoings related to the home, and who will pay any other debts. A lawyer will give you advice on these questions and other decisions that will need to be made.
- The only way to obtain a binding agreement about the division of relationship property (apart from obtaining a Court Order) is by the finalisation of a Relationship Property Agreement. In order for a Relationship Property Agreement to be binding, both parties/spouses must receive independent legal advice from separate lawyers on the effects and implications of the Agreement before they sign it. The Agreement must be in writing and each party’s lawyer must witness the signature of their client. A verbal agreement or a written document prepared without legal advice will not prevent your spouse/ex-partner from claiming more property from you in the future.
