The Things You Need to Consider Before Separation

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For those people contemplating separation, they’re not alone. As the growing pressures on the family unit take their toll, family law disputes are increasingly commonplace. But making the decision to leave or to separate, isn’t for the fainthearted. And if you’re not careful, you can make the decision without putting some important things in place.

In this podcast, Matt Stimpson, a Family Lawyer from Big Law gives great information contemplating the move.

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    Dan: What’s the starting point for people considering separation?

    Matt: Often, we find that when people separate, they don’t have an appreciation for what their asset pool consists of. We always advise people that they should make some notes before they separate, as far as their partner’s bank accounts are concerned. And not necessarily the contents of them, but who do they bank with? Superannuation interests, some people have scattered superannuation funds after taking multiple jobs across very broad career areas.

    Matt: And it can be very difficult to get an initial appreciation for what assets and liabilities there are when people don’t really know where to look. Lawyers can do a lot for people in terms of finding out information. But we really need to be focused in the right direction in order to be able to do that effectively.

    Dan: Matt, what about some of those other practical things, like, just say for example, mama is leaving dad, and there’s two or three kids, I’m assuming that things like getting some counselling, notifying the school that the family unit is going through this tumultuous period, or about to go through this tumultuous period, is that all common sense?

    Matt: It is. It is. Most of it is a common sense approach in terms of let’s just say, notifying the school, and family members, the children’s GPs, and also, trying to get them a mental health plan can be a positive step, as well. We often find that the children do struggle with separation, and they struggle in their own ways. Certainly, you would recommend that if it is an option, that people look at obtaining some counselling or some therapeutic intervention, particular in circumstances where there can be some family violence, as well.

    Dan: Now, following separation, I mean, you did mention some things like getting an assessment of assets and what have you. At what point should a person contemplating separation seek legal advice? Should it actually happen before separation, or after?

    Matt: I would always advocate that people get advice before they separate, so that we can put a plan in place and develop a strategy about how they extricate themselves from their circumstance. And again, that can be if there’s family violence present or if there’s not.

    Matt: And certainly, the things that I would be looking to advise people is to secure their personal property, secure their personal documents. Again, make some notes on what assets and liabilities there are, and I don’t mean in terms of the nitty gritty, performing a stock take on the china, and the cutlery, and the house. But more so, the big ticket items, vehicle registration numbers, superannuation interest, bank accounts, those sort of things, certainly, as a preliminary step before we then start looking at what’s next after separation.

    Dan: Now, if there’s a concern for one of the parents around, perhaps, the other party or the other person pulling money from the account or spending money frivolously, what do you say in that respect? Does the family law court have the option of looking retrospectively over that asset pool?

    Matt: In terms of if people are going to move assets, the court has the power to make orders, and in some circumstances, we can include an add-back of certain assets if they have been moved, hidden, and in some circumstances, if they have been spent, as you say, frivolously.

    Dan: Following separation, I’m assuming that the person separating has sought legal advice. What does the road look like for that person?

    Matt: Often, we try to negotiate a settlement as quickly as we can, and usually that involves an exchange of correspondence, or in some circumstances, a phone call between solicitors. If they’re not able to resolve it in that manner, then we would always advocate to go to mediation.

    Matt: I often find that mediation is more successful and cost effective than proceeding down the path of litigation. There’s two different types of mediations that you can use. You can use public mediation services, like Relationships Australia, or alternatively, you can engage a private mediator that is solicitor inclusive. In my experience, solicitor inclusive mediations resolve about 95% of all family law matters that proceed down that path.

    Dan: Now, is mediation compulsory at some point along the journey?

    Matt: The short answer is yes. In parenting matters, a party is required to attend or at least attempt to mediate with another parent prior to being able to file in the federal circuit court for final parenting orders. If it’s a property matter, however, what the court will do is refer parties to mediation after the first return date.

    Matt: So, essentially, if a party is engaged in a family law dispute, it makes practical sense to proceed to mediation at the first earliest possible date, rather than proceeding straight to court. Because again, if you’re finding yourself at mediation anyway, it seems more prudent to take that step at an early opportunity.

    Dan: Now, Matt, in the context of property settlements, there is a myth that I often hear that you’ve got to wait for a divorce to be instigated before you can actually do a property settlement. Now, that’s not the case, is it?

    Matt: Absolutely not. In fact, if a party divorces themselves, or obtains a divorce order from the federal circuit court, essentially, what they do is, they start a clock ticking, and the law states that parties have 12 months from the date the divorce becomes absolute to apply for a property settlement. So, that starts to put some pressure on them to be able to achieve that property settlement within that 12 month window.

    Dan: It’s a complex area of law, Matt, isn’t it?

    Matt: It is.

    Dan: And emotionally charged. People can, perhaps, make decisions that are adverse to them, down the track?

    Matt: Absolutely. We see that quite regularly as family lawyers, and it is our job to try and put some balance and perspective into those sort of situations for our clients, and advise them on which way they should go to try and take some of that emotion out of it, and focus on the issue at hand.

    Dan: Matt, thanks for joining me.

    Matt: It’s been a pleasure.

    At Big Law we provide holistic legal solutions to legal matters.

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