Separation Agreements and Australian Family Law

Society today is very different to a time when marriage was for life and the idea of a couple 'living in sin' was... well... frowned upon to say the least. Here are the statistics for today.

Statistically in a group of 10 people;

Two to three will have had either 2 or 3 defacto type relationships. One or two will have had 3 or more. FIVE will be heading for there first split!

So with this in mind it could be a very costly exercise to have the potential of 3 or more costly settlements. However if you and your (ex) partner can decide amicably then it doesn't need to be drawn out and expensive.

Here are some legal aspects to what defines 'separation'. The Family Law Act states a separated couple as;

The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other."

After amendments to the Act same sex couples have the same legal entitlements as heterosexual couples.

When a couple is married then they must wait at least 12 months before going through the process to get a divorce, BUT you can agree on how you will divide property at any time. This applies to both married and defacto couples alike.

Any type of Financial Agreement has to have the correct certification to become legally binding. This is officially known as 'certificate of independent legal advice'. This is where each party gets a certificate from a qualified lawyer stating that they have been informed of the nature of the agreement and how it affects there rights. Without this it can be challenged in a court of law.

It will state how any assets will be divided and may include;

Maintenance of children
Superannuation splitting
Asset splitting
Insurance policies

It is a great benefit to everyone involved if things can be resolved amicably so that the process goes smoothly and at the least cost possible. Also if any children are involved then the less arguing between the parties the better as the children can easily be adversly affected by any conflict between parents.

An agreement can be achieved at a minimal cost by using a separation agreement template and having a lawyer certify it as legal. This method is the most cost effective when both parties agree and just need the correct paperwork.

If the two parties cannot agree then you will need to seek the help of a family law firm which will result in a costly and emotional journey that no one really needs or wants.