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  • Writer's pictureAmanda Sommerville

Is it time to separate?

Not every relationship end is caused by a dramatic event or big break-up. Sometimes, relationships end after careful thought and consideration.

It is not an unusual occurrence for a party to a relationship to obtain family law advice prior to a separation actually occurring. This gives the person the knowledge and tools to consider whether separation is the appropriate step or whether they wish to continue in the relationship in the hope things improve.

If you do seek legal advice whilst in a relationship, there is no obligation for you to then separate just because family law advice has been obtained. The legal advice will be confidential between you and your lawyer and you may decide to stay in the relationship and get better organised or see if things get better.

What is separation?

Separation can be the act of one person physically leaving the relationship. It can also be where one party tells the other that the relationship is over, but the parties continue to live in the same home, but as two separate people rather than as a couple. This is known as ‘separation under the one roof’. It is often where financial constraints prevent the parties living in separate homes.

Separation does not require the agreement of the other party, but it must be communicated – so you can’t decide the relationship is over and not tell the other party about your decision.

Is it time to separate?

It’s not unusual to experience problems in any relationship. Sometimes the problems can be short-lived and at other times the issues are enough to make you wonder, “is this worth it?” or “should I end things?”. There are a number of things to think about before making a decision.

Can we fix it?

Is the relationship salvageable and is it worth trying? These are questions that only you can answer. The safety of yourself, your children and family members is always a critical consideration at this stage. Don’t stay in an unsafe situation.

When considering the future of your relationship, you think about your options and what a separation would mean to you, your children and your financial situation.

You should consider seeking legal advice at this early decision-making stage so that you have the information to make informed choices. You could see a lawyer to obtain information relevant to your specific situation. You might want to talk to a counsellor. It may be helpful to access other services, depending on what the issues are in your relationship - such as drug and alcohol rehabilitation, gambling counselling or anger management courses.

It may be worth talking to your partner to see if he/she is willing to attend counselling to try to resolve issues. Keep in mind that this can be a volatile conversation to have.

Always make sure that you are not at risk of potential family violence and end the conversation quickly if you feel threatened. You may even need a support person with you during the conversation.

Set the ground rules if you can

Separating can be hard – especially in the initial stages when emotions are raw and finances are often tight. You might want to give thought to matters, such as:

1. How will the separation work?

There will be a number of logistical matters that need to be decided – and usually quite quickly. Where will you live? Who is moving out of the family home? How will the move be financed? Who is paying rent/the mortgage/the debts? This can be a particularly difficult decision if one party is a homemaker and not earning a separate income.

If you are able to communicate safely with your former partner, it is worth having the hard conversation to try to agree how things will be managed between you both. These agreements are often only for the short term to ensure debts are serviced and you can both live whilst a final agreement is reached in relation to your family law matter.

2. What will the arrangements be for the children?

It is extremely important the children are shielded from the conflict of a relationship breakdown as much as possible. If possible, arrangements should be agreed to ensure there is a reasonable, sustainable parenting agreement in place for the children.

It is important that the children continue to have a meaningful relationship with both of their parents, as long as it is safe for them to do so. It’s important to ensure the children are kept safe and supported during the process of settling into the family’s ‘new normal’.

There are services that can help you with parenting negotiations if communicating with your former partner is difficult, such as the Family Relationship Centre and private mediation services.

3. How will the relationship assets and liabilities be shared between you?

It’s important that you both know and understand the full extent of the relationship assets and liabilities.

To do this, documents should be exchanged such as bank statements, superannuation statements, ownership documents for assets. Sometimes information needs to be obtained from third parties as well – such as finding out from your bank whether assets are cross-collateralised or obtaining real estate appraisals of the home. This is known as the ‘disclosure’ process.

If you have access to these types of documents whilst you are still in your relationship, it is a good idea to obtain copies of them before you leave, as it can make the disclosure process quicker and simpler if you already have the information.

It is only once both parties clearly understand the relationship assets and liabilities that there can be meaningful property settlement negotiations.

4. Who will look after the irreplaceable items?

Take some time to work out what is irreplaceable in your home. It’s usually things which have little financial value – such as the family photo albums, the baby books and sentimental possessions such as your late grandmother’s vase collection. These are the items that are easily lost and destroyed when there is a relationship breakdown. As the value is generally sentimental, you can’t be properly compensated for their loss. If you separate, make sure these items are kept safe and secure, so that they will still be in existence when it comes time to divide them up later on.

If you can, it’s helpful to obtain legal advice early on. This will help you be properly informed before making any big property or parenting decisions.

Many relationship breakdowns can be resolved amicably, but even then, it is always advisable to document the agreements into formal Court orders. This is so that each party has certainty as to what has been agreed and to evidence that a final agreement has been reached. Involving lawyers in your family law matter does not automatically mean you will be incurring huge legal fees or entering into contested litigation. Often your lawyer will be the voice of reason, helping you navigate through the process as quickly and cost effectively as possible.

This can be a very stressful time – whether you decide to separate or not. Obtaining advice and support from counsellors and a family lawyer prior to making a decision can be invaluable during your decision-making process. If you do decide to separate, then these trusted advisors can also help you navigate your way through the process towards a positive outcome for you and your family. Good luck, whatever you decide.

This article provides general information only and is not intended as legal advice. It does not deal comprehensively with the legal issues involved in separations or your particular situation. If you would like to obtain legal advice in relation to your particular situation, you should obtain legal advice from an experienced family lawyer.

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