Things to Do Prior to Separation
In this video, Page Provan Managing Director, Bruce Provan discusses the things you need to consider prior to separation.
My name is Bruce Provan. I’m the Managing Director of Page Provan, Family and Fertility Lawyers. We’re a firm of lawyers in Central Brisbane that practice exclusively in family and fertility law. I want to talk today about what you need to think about if you have separated or you’re contemplating a separation.
There’s five things that I suggest that you do think about and the appropriate time to seek advice from a lawyer about these things. The first is arrangements for the children, and that’s also the most important, obviously.
So if you’re contemplating a separation, arrangements obviously will need to be made about the children, where the children live, which parent the children live with, and how much time they spend with each parent, and that could either be done through negotiations between parents, preferably.
But if there’s no agreement, parents often will engage with a mediator or a family dispute resolution practitioner who can assist them to be able to reach an agreement about the children. They say that the separation itself usually doesn’t have a huge impact or a huge negative impact upon children.
What causes grief for children is any conflict that occurs either while the couple is still together or post-separation.
So if you can manage to avoid a conflict and have a fairly amicable separation and be able to make arrangements between the parents for the children, that’s obviously far preferable and will probably have a minimal impact upon the welfare of the children.
The second factor to think about is the property settlement, and that is how the property owned by the couple are to be distributed and that’s where good advice from a family lawyer can assist. In the vast majority of cases, people are able to reach an agreement without having to go to court and let a judge decide how the property settlement is to be determined.
The statistics show that even of the cases that start in court, only about 5% of them will go all the way to a final hearing before a judge, 95% of them will settle along the way.
Now, there’s a huge number of cases where property settlements are resolved and documented without even going to court, and the new procedures of the court require parties to engage in pre-action procedures to try to resolve the matter through negotiation and/or mediation or other alternate dispute resolution before there’s an application.
So determining the property settlement, the steps that you will need to think about and seek advice from a lawyer about are these. First, is it just and equitable for there to be a property settlement? Second, what are the contributions by each of the parties and how are they assessed?
The third is what adjustment is made for what we call future needs factors and that takes into account things like each party’s health, their age, their number of dependents, and a host of other factors.
So, I recommend you seek advice from a lawyer at an early stage, preferably even before separation, about how the property settlement might be resolved. The next factor to think about is spousal support. That is, if one person should be required to maintain the other person post-separation.
This particularly applies to a situation where one parent has been out of the workforce for some time, or they may only be working for, or they may be working part-time, and they don’t have sufficient income to be able to maintain a reasonable standard of living, and in that situation, a court can make an order for the higher income earning parent to financially support the lower income earning parent for a period of time, usually not indefinitely, and most of the time, that can be negotiated along with a property settlement.
Another factor to think about is child support. If there are children under 18, then most of the time, one parent will be required to pay child support to the other parent and the way that is determined most commonly is through an assessment by the child support agency.
If you’re wondering how much child support you may be required to pay or you’re entitled to receive, what I suggest you do is to go to the child support calculator, which is on the Services Australia website.
If you input the variables there, which include the income of each parent, the number of nights the children spend with each parent, and the ages of the children, that will cause an assessment to or a number to be produced, which is the amount of the assessment.
Many couples choose not to pay child support according to an assessment, and they come up with their own arrangements and those arrangements can include.
For example, an agreement that one person is going to pay the school fees or other expenses, and the final factor to think about when going through a separation is the divorce itself. Now, the divorce itself is a relatively easy process in the vast majority of cases.
The divorce has to happen at least 12 months after separation. You can’t apply to court for a divorce unless you’ve been separated for 12 months and it usually happens after the property settlement and arrangements for the children have been put in place.
As I said, it’s a fairly straightforward process and you can seek assistance from a lawyer to assist you with that. So my name is Bruce Provan. I’m the managing director of Page Provan, Family and Fertility Lawyers, and if we can assist you with any of those matters, please contact us.