Australia: What happens after family separation?

Family separation is a very difficult time for everyone involved, and to make it worse, the legal process after separation can be protracted and confusing.

This article is designed to help you understand the process after separation so that you can focus on moving forward in your life.

Try to reach agreement if at all possible

Once you and your partner have decided to separate, the first thing to do is to talk to your partner calmly about how to move forward. The most important things to discuss are:

• Living arrangements for both parties and the children, if any
• Financial budget for both parties and the children, if any

The last thing anyone wants is to have one party with nowhere to live and no money for rent or food.

If you cannot come to suitable arrangements about these matters, then you must seek legal advice immediately. Your lawyer will help you negotiate with the other party to come to interim arrangements before permanent arrangements are made.

What you need to bring when meeting your lawyer

On your initial consultation with your lawyer, you must bring the following information with you:

• Your identification (driver's licence and Medicare card)
• Your former partner's details (name, address, contact information and/or lawyer's contact details)
• Information regarding your assets, liabilities and finances, such as certificates of title of properties (or the details of the properties), bank account statements, individual tax returns, company tax returns, vehicle registration details, superannuation statements and any other relevant information about your assets
• Your children's details, if any

Your lawyer will ask you if you have come to any agreement between with your former partner about the arrangements for the children or the property settlement. If you have, your lawyer can help you draft the relevant legal documents to have those arrangements sealed by the court, making them a court order.

How will the assets of the relationship be divided?

Coming to an agreement with your former partner about how the property is to be divided can be very difficult. Sometimes one party has put significant amounts of money towards a property, or maintenance of the property, while the other party has reared the children, or contributed to the relationship in other ways.

Under the Family Law Act 1975 (Cth), the court must take into consideration both the financial and non-financial contribution of each party to the relationship and the assets.

Your lawyer will advise you that the relationship assets will be pooled into a combined sum. Each party's contribution to the relationship and assets will then be assessed to configure a percentage split between the parties.

If you and your former partner cannot agree on a property split, and your lawyer and your former partner's lawyer cannot assist with a settlement, you may commence proceedings to have a judge decide the case for you.

If you and your former partner can agree, or your lawyers have enabled you to come to an agreement, then you may enter into two types of agreements.

The first is a binding financial agreement. The second is a court sealed consent order.

Binding financial agreements not without risks

A binding financial agreement is an agreement between the parties that is not sealed, registered or approved by the court.

The agreement is only binding if strict requirements are met, such as that both parties receive independent legal advice about the effect of the agreement on the rights of the party and about the advantages and disadvantages of the agreement.

These agreements may be made before a marriage, during a marriage or after a marriage, and can be made for same sex and de facto couples.

There are risks involved in entering into binding financial agreement. There has recently been a string of court cases where the court has overturned a binding financial agreement.

Binding financial agreements can be set aside by court

For example, in Black & Black [2008] FamCAFC 7, the couple had agreed by way of a binding financial agreement that the husband would sell his property and deposit the funds into a joint bank account, and the wife would deposit the proceeds of her personal injury compensation claim into the same joint bank account.

The matrimonial home would then be purchased from the funds in the joint bank account. In the event of separation, the parties would sell the matrimonial home and split the proceeds equally.

After the binding financial agreement had been signed, the wife's personal injury claim was settled out of court for a smaller amount that expected and therefore her contribution to the joint account was less than expected at the time of entering the binding financial agreement.

On separation, the husband argued that the property should not be divided equally as per the binding financial agreement, because the wife did not contribute equally to the joint account.

On appeal to the Full Court, the husband successfully argued that the section of the Act governing the binding financial agreement should be interpreted strictly. The certificate annexed to the binding financial agreement did not explicitly exclude the court's jurisdiction in the matter. Therefore, the agreement was set aside and the property was split using the ordinary principles for a property settlement.

It is very important to seek expert legal advice if you intend to enter into enter into a binding financial agreement.

Court sealed consent orders

A court sealed consent order is a document drafted by your lawyer that sets out the terms of the agreement between the parties. It can be simple or complex depending on what the parties have agreed to.

The consent order is attached to an application form which sets out both parties' assets and liabilities. Both parties need to complete the application form and provide each other with their documentation disclosing their assets and liabilities. It is important that each party provides the other with full and frank disclosure, so that both parties know what is in the matrimonial pool of assets and what they are both agreeing to keep or discard.

Once the application and disclosure are complete, and the parties have sought independent legal advice, both the consent order and the application are sent to the court with a $160.00 filing fee for assessment.

The court will assess the agreement and provided nothing unreasonable has been agreed to, then the court will seal the documents as a court order. The parties are not required to attend court at all. Your lawyer will then help you to finalise the requirements in the consent order.

Living arrangements and time to be spent with the children

In the event that the parties cannot agree on living arrangements and time to be spent with the children, the first step is to attend mediation. Mediation can be organised privately or through agencies such as Centacare.

At mediation, you will either come to an agreement by way of parenting plan and adhere to it in the future, or you will not come to an agreement. (For more information about mediation in family law, please see our earlier article Five good reasons to try to resolve your family law property and parenting disputes through private mediation.)

If you do not come to an agreement, you will require the mediator to provide you with a section 60I certificate. This certificate will be provided to the court in the event that proceedings are commenced about the living arrangements and time to be spent with the children.

Before commencing proceedings, it is important to speak to your lawyer. Your lawyer will be able to advise you on your rights as a parent and may be able to liaise with the other party or other party's lawyer in order to come to an agreement. Again, you may enter into a parenting plan, which is non-binding, but it is a good planning tool for the parties to spend time with the children.

If you feel that you require a court sealed document, then you may enter into consent orders in relation to the children also. It is a matter of preparing the consent orders and application for consent orders.

Court proceedings a last resort when all attempts to reach agreement have failed

If you cannot come to an agreement with your ex about the children or the property, either directly or through your lawyer or mediator, then you may commence proceedings.

Proceedings may be long and drawn out because the court requires many documents to be filed, including affidavits stating your case. Sometimes, in matters involving children, there will be an independent children's lawyer appointed by the court, so that the child is equally represented.

The court may also order that a family consultant report be prepared. This means that the parties will be interviewed by a family consultant who will prepare recommendations as to the living arrangements and time to be spent with the children. The court will then take these recommendations into consideration when making final orders.

If at any time during the proceedings you wish to come to an agreement with the other party, you may do so.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.