The breakdown of a marriage or de facto relationship can be a very emotional and difficult time, particularly if the breakdown is due to infidelity or comes as a sudden shock to one party. Law Graduate in our Family Law department, Emily Edmonds, discusses this important topic.
It is hard to know what to do when you are facing this situation. Emotions are raw, tempers can be high and the sense of grief for the loss of the relationship can be consuming. It is important at this time to focus on the positives, allow yourself to work through the grieving process, and make a plan of action.
Here are 10 tips of what you can do to navigate your way through this situation:
1. Get some help with professional counselling
Seek counselling from a professional Counsellor to help you deal with your emotions, grief and anger. You need a professionally trained Counsellor to help you through this time. Friends and family will all offer you advice and guidance (most of it unsolicited) but if you find that you, or your children, are not coping with the situation, then you should speak to a professional. Relationships Australia offers a free counselling service. They also offer marriage counselling if the parties wish to explore the possibility of reconciliation.
2. Notify Centrelink (if applicable) and get financial advice
The breakdown of a relationship can cause financial hardship as usually there will be 2 households to run on single incomes instead of 1 household to run on 2 incomes. This can be a particularly stressful time for parents who have elected to stay at home to look after the children and do not have an income. Notify Centrelink of your separation and seek advice about any financial assistance you may be entitled to.
3. Keep it off social media
Do not post on social media about the breakdown of the relationship, or denigrate or threaten your spouse. These remarks made in the heat of the moment, may come back to bite you. Don’t think that your children don’t know what is going on. They will feel the tension and hostility and having it published on social media will just add to their anxiety about the situation, and may isolate you socially.
4. Try to maintain a positive environment for the children
Make a decision about where the children are going to live. The law says that the best interest of the children must be taken into account at all times. Whilst parents may separate, it is important, when and where possible, for children to maintain a meaningful relationship with both parents. Try to reach an agreement that works for everyone. Again, Relationships Australia offer a Family Dispute Resolution service which can assist with coming to a co-parenting arrangement.
5. Update your Will and Enduring Power of Attorney!
If you don’t have a Will, you need to make one immediately! If you die without a Will but are still married, your ex-spouse could inherit your whole estate on intestacy, even though you have been separated for a lengthy period!
If you have a Will and Enduring Power of Attorney which nominates your estranged spouse as your Executor, Beneficiary and/or Attorney, you need to change those documents. In the event that you should die or become incapacitated, it is unlikely that you will want your estranged spouse receiving a benefit under your Estate, or making any lifestyle and health decisions for you, including turning off your life support!
These critical steps are often overlooked or forgotten about in the flood of emotions and stress.
6. Review your superannuation and life insurance policies
You should review your superannuation policy, life insurance and other death benefits. If you nominated your estranged spouse as the beneficiary, or there is no nomination in place, it is likely that the Trustees of the Superannuation Fund will pay any superannuation and death benefits to your spouse. If the Superannuation Trustee does pay the monies out for the benefit of your minor children, then the person who will control those funds is likely to be the surviving parent (your estranged spouse), as they will be the children’s guardian. If your children are minors, you may wish to consider paying these benefits to your Estate upon Trust for your children, and nominating a Trustee in your Will to look after these funds until your children have reached adulthood.
7. Manage joint bank accounts
If you have a joint bank account with your spouse, there is nothing stopping one party from clearing out the bank account. Give some consideration to withdrawing a portion of the funds contained in the joint bank account to assist you with your ongoing bills such as rent, mortgage payments or household expenses.
8. Take your important documents and sentimental belongings with you
Furniture and personal items are generally considered by the Family Court to be jointly owned. If you are leaving the house, you should consider all the furniture and personal items you need before you leave. Important documents such as passports, and sentimental items should be taken with you. Whilst the items are moveable, once you leave the house it is harder to retrieve items you left behind. If you are the spouse who is staying in the house, you are able to change the locks to stop the departed spouse from entering the house, even if the house is jointly owned. But remember to be reasonable when dividing these items and try to seek an agreement which works for both parties.
9. Ensure you know each party’s financial position and gather your evidence!
Gather all important legal and financial documents as you need to know where you stand in terms of the assets and liabilities of the relationship. You need to know your financial position and your partner’s financial position to move forward with a property settlement. You will need your marriage certificate, bank statements, tax returns, superannuation policies and loan documents.
10. Seek legal advice
Get legal advice from an experienced family lawyer. Engaging a good family lawyer early on will assist you with getting a fair and speedy settlement so you can move on with your life both financially and emotionally. Family law is a complex area and it can be very challenging both legally and emotionally even for the most level headed and organised person. A good family law lawyer will keep the process on track and provide you with practical advice to achieve a reasonable and fair settlement.
Attwood Marshall Lawyers have a Family Law Department with extensive experience in all aspects of Family Law and Estate Planning, and have particular experience in dealing with more challenging cases involving entrenched property disputes.
We welcome any enquiries or comments in relation to these issues. Please contact our Family Law and Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.
