There can be some confusion among clients about what their rights are during a separation. When separating what are my rights? It’s important to know how the Family Law Act applies to you during this time so you can protect your rights. Matters such as spousal maintenance, future needs, and financial entitlements can significantly impact the outcome of a separation. Let’s look at what the law says about separated couples and how these factors are considered.
Key takeaways
Separation marks the end of a domestic relationship and is a crucial step in the divorce process.
Separated couples can divide property, but time limits vary for married and de facto couples.
Both spouses have rights to the marital home, though one may be required to leave in certain cases.
Formalising parenting arrangements is essential for parents living separately.
Dispute resolution and financial support play key roles in effective parenting arrangements.
Our case study highlights our commitment to guiding clients through separation collaboratively.
What is separation?
Separation begins when couples choose to stop living together in a domestic relationship. To enter a separation, you need to inform your partner that you intend to end your relationship. You can do so in writing or through interpersonal communication. You don’t need permission from your partner or any legal authority to leave a relationship. You can separate unilaterally or with your spouse’s agreement.
Separation generally means living apart. However, separated couples may continue cohabiting if they can prove that they’re living separate lives.
A 12-month separation period is required before a married couple can apply for a divorce. Separation can last as long as the parties choose. For people in a de facto relationship, no further action is required. Separation is the formal legal ending of a de facto relationship.
Property settlement
One of the first actions separated parties should take is to settle their property matters. Binding financial agreements can be organised during a relationship. However, parties can only access property orders after separation.
There’s no time limit on property settlements for separated married couples. After divorce, parties have one year to divide their property. De facto couples have two years from separation to settle their property matters.
Who gets the house?
One of the biggest concerns for clients during the separation process is their rights regarding the family home. Let’s address some major concerns. A family lawyer can provide guidance on property settlements, considering factors such as the asset pool, financial records, and personal loans.
The division of the home is often determined as part of the broader property settlements, taking into account contributions from both parties and their future financial needs.
What if my spouse kicks me out after we separate?
Both spouses have an equal right to stay in the home after separation. Family law treats the marital home differently from property law, meaning it doesn’t matter whose name is on the title deed. You cannot be forced to move out against your will unless there are exceptional circumstances.
When determining a property settlement, factors such as non-financial contributions, credit union accounts, the overall property pool, and relevant financial documents may be considered. Seeking legal advice can help you understand your rights and obligations, especially if a divorce order is in place.
What if I fear for my or my children's safety?
Family violence is one reason why a spouse may be removed from the family home. If you or your children are in immediate danger, call the police. The police can issue a police protection notice (PPN) on the spot which can compel the respondent to leave the house. A PPN functions as a temporary protection order until a final protection order can be obtained from the Family Court.
You can also apply for an exclusive occupancy order. The Court will consider the evidence of domestic violence, what’s in the best interests of the children, and the financial resources of each party.
Parenting arrangements
Parenting arrangements are one of the most important family law matters for parents. Once separated, spouses are expected to live separate lives. This means establishing how long-term decision-making and living arrangements will be handled.
Additionally, separated couples may need to navigate property settlements, the division of joint bank accounts, and the financial implications of separation under Australian law. Seeking guidance from an experienced family lawyer can help ensure a smooth transition while protecting financial interests, including bank accounts and other shared assets.
Separated co-parents both have a right to see their children unless there are concerns of violence. If parents can’t agree, family dispute resolution can assist.
Family dispute resolution
A family dispute resolution practitioner can help parents develop a parenting plan that is in their child’s best interests without court proceedings. This process may involve reviewing personal documents, such as a marriage certificate, and discussing key issues with a former partner to reach a private agreement.
Establishing the date of separation and addressing outstanding bills are also important factors in resolving parenting and financial matters amicably.
Financial support
Separated parents have the right to apply for a child support assessment. Services Australia, Australia’s child support agency, determines the amount of child support payable through a child support formula.
This process may also involve considerations related to a divorce application, consent orders, spousal maintenance, and future needs. Additional factors, such as a parenting order, bank statements, rental agreement, and the parties’ future financial circumstances, may also be taken into account when assessing child support obligations.
Case study
A case study from one of our clients shows the importance of collaborating with an ex-partner for the best outcome.
The team was very helpful in fostering and maintaining a good relationship and working with us for a final outcome. All involved listened and help guide through what was an unknown process.
- Aaron Young
Family law may seem daunting. However, when you seek legal advice from an experienced family lawyer such as Shanahan Family Law, you benefit from our extensive expertise. We are dedicated to avoiding litigation and helping clients remain on good terms for everyone’s benefit. Our team provides guidance on the legal process, including property settlements, property division, and matters relating to a de facto relationship, ensuring a fair and amicable resolution.
Conclusion
It’s crucial to know your rights after separation. Organising parenting and property matters properly ensures you can handle your divorce confidently. Clarifying your rights to the home is also important so you can maintain your rights after separation.
Do you need independent legal advice on a family law matter? Call our office today.
