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About Separation and Property Settlement

Divorce and separation

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If you are a married couple, you will need to wait at least one (1) year after separation before you can file an application for divorce in the Family Court. However you can determine how you will manage the property settlement anytime after separation.

Property settlement for de facto couples is dealt with in the same way as married couples. Both married and de facto couples can choose to enter a Binding Financial Agreement or apply to the Court for a property settlement.

Deciding on how to divide your accumulated property

Under the Family Law Act a couple who have decided to end their relationship can make a Financial Separation Agreement. The Agreement records how the couple intend to divide their assets, and can include matters such as:-

• how all or any of the property or financial resources are to be dealt with;
• the maintenance of either of the spouse parties;
• incidental, ancillary matters or other matters.

Taking care of the children

The Family Law Act in Australia requires that the “best interests of the child” are considered when making arrangements for children. If possible, this would entail the child having a meaningful relationship with both parents, but only if this is in the best interests of the child.

In order to do this the parties can enter into a Parenting Plan as agreed between themselves, or obtain parenting orders through the Family Court.

Child Support

In Australia, the Child Support Agency assesses the rates of child support payable by one parent to the other. Parents are able to come to their own agreement concerning the amount of child support to be paid, by entering into a Limited Child Support Agreement or Binding Child Support Agreement . This Agreement is particularly useful if the parties have agreed for a lump sum, or substantial asset (such as the family home) to be transferred in lieu of child support.

Other concerns that should be addressed after separation.

It is important to ensure the terms of your will are still current and up to date. You should prioritise arrangements to up-date your will if it does not reflect your current circumstances.

Take the opportunity to confirm that the beneficiaries of any insurance policy and superannuation accounts are still accurate, or update them if need be.

If you own property with your ex-partner as joint tenants and the property is in the process of being transferred or sold, you may still wish to sever the joint tenancy. This will ensure that your share of the property passes to your estate in the event of your death. Otherwise, the property will automatically pass to the surviving joint tenant. This process can be effected via the Land Titles Office in your state.


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