“I NEED A DIVORCE”
Posted on 5 September 2022
“I need a Divorce” – why a divorce is not the most important step when going through separation!!
In Family Law, it is widely understood that property division is one of the most disputed stages of a divorce proceeding.
However, lets look at how property division and divorce are different.
When we take an initial family law enquiry, it is more often than not from a new client who is looking to ‘get a divorce’, however when we delve deeper with the client, what they are mostly concerned about is their property division. They are two (2) separate processes.
Getting a Divorce:
We recommend getting a divorce is the final step you take when going through a separation with your ex-spouse. We say this because, from the day your divorce order is final, you have twelve (12) months to finalise your property division, after which you will need to seek the leave of the court to file an application, and there is no guarantee leave will be granted – it’s an extra step which simply ads time and cost. So, why trigger this time limit if you don’t need to.
Property Division
In Australia, we determine the division of matrimonial assets by a five (5) step approach, as stated in the Family Law Act 1975. A summary of the five (5) steps can be found by downloading our brochure here.
Now you know about the five (5) step approach, let’s talk about what you can do to make the property division process as least complicated as possible. If you are yet to let your spouse know you have made the decision to separate, there are some steps you can take to get yourself prepared:
Get yourself your own bank account – if you don’t already have your own personal bank account, get one and start putting some money aside to set yourself up and become financially independent. We often see one spouse (especially in a long term marriage), have no idea on how to be financially independent and don’t have their own bank account, meaning your ex will see any purchase you make or where you spend any money.
Gather any financial information, even if you don’t think it is important! – In family law there is a duty of disclosure, which means there is a requirement that each person is transparent about their financial circumstances and discloses all relevant information and documents relating to an issue in dispute to the other party and the court in the course of proceedings. However, in a proceeding where one party is trying to conceal one (1) or more assets, it can become a costly exercise to obtain information which has not been disclosed. If you have the evidence to produce to your lawyer at the outset, it will save you time and cost during the process.
Make sure you change your passwords and pins on your devices – It is not uncommon for one (1) side to be taken by surprise when they learn you have made the decision to separate. When confronted with the overwhelming emotions, your ex-spouse may start acting in a way you weren’t expecting. This can (an often does) include breaching your privacy, becoming financially controlling and starting to hide assets (including money in a bank account). You can limit how much damage can be done by changing your passwords and making sure your accounts are secure.
Consider your will – Until you have your divorce order, your current will remain valid, which means your ex-spouse will inherit your estate. Make sure you make a will or update your will if it no longer records your wishes.
Sever any joint tenancy – If you and your ex-spouse own property, you might (and often do) hold it as joint tenants. If this is the case, your share in the property will pass directly to your ex.
You can avoid this by making arrangements for the property to be held as tenants in common instead of joint tenants.
Get legal advice early – Take advantage of our complimentary initial phone consult. Don’t get your advice from friends who have been through the process, your family law situation will always be different. We take the time to put a plan in place on how to best approach your matter, tailored to your individual circumstances.
Get in contact with Omnia Legal to schedule your complimentary phone consultation.
This article provides general information on legal topics for educational purposes only, and should not be considered legal advice or recommendations. While we have taken care to ensure accuracy, Omnia Legal is not responsible for any errors, and makes no guarantees about the accuracy or completeness of the information. Links to third-party websites do not constitute an endorsement, and we are not liable for any damages that may result from using inaccurate or incomplete information. It's always best to seek legal advice for specific situations.