Johnston Withers

Separation: Some helpful hints.

Published on Monday 24 July, 2023

Family law
Legal tips

When a marriage or relationship breaks down, it can be a distressing, unsettling, and profoundly life altering experience. Some people separate on amicable terms but for others it is much more difficult. When the end of relationship is being contemplated or has happened, there are certain preliminary steps it can be sensible to take.

Please be aware that this information is general in nature and has not been tailored to account for personal circumstances. For example, if there is a risk of family violence or abuse, these preliminary steps are unlikely to be suitable.

Look after yourself, seek legal advice and keep a diary

Accessing help and support from health care professionals like GPs, counsellors, and psychologists early on can be enormously helpful. The same can be said about getting legal advice. A family lawyer will be able to provide personalised advice, offer clarity, and help with understanding rights and obligations under the law.

Also, starting a personal diary as soon as possible after separation can be a good way of documenting important dates, events, interactions and agreements. Separations are often stressful and it’s normal to feel overwhelmed. A diary and detailed notes help by alleviating the burden of having to rely on memory alone when experiencing those other, tough feelings and emotions.

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Security, pins, and passwords

Prior to or at the time of separating, it’s important to do an audit of devices, digital services and subscriptions along with the passwords and pins that go with them. Then, it’s good practice to change all of those passwords and pins to prevent unauthorised access. People should take special care to secure their devices (including personal computers, phones, tablets), email addresses, online banking, and social media.

For peace of mind, people should also check the location services and tracking functions on their devices and associated with their digital services and subscriptions. Care should be taken to remove any location or tracking permissions given previously to a former partner (unless there is a mutual agreement about maintaining them).

Personal documents

Resolving a property settlement involves gathering and exchanging essential documents like tax returns, bank statements, and superannuation details. When people are unsure of the extent of the pool of assets available for division, it can be harder to sort out a fair settlement. So, gathering as much financial information as possible should help with establishing the pool early on and getting to a sensible, fair settlement more promptly.

Sorting out a settlement

The standard approach involves a preliminary question and 4 steps. The net asset pool is established. Then, contributions and future needs factors (like age, health, income, and care of children) are identified, evaluated, and weighted. In some situations, other adjustments are made to ensure a just and equitable outcome.

Formalising terms of settlement can often provide Stamp Duty exemptions and Capital Gains Tax rollover relief and it’s important to get legal and financial advice about those issues. If agreement can’t be reached, an experienced family lawyer can assist with navigating Court processes and procedures.

Arrangements in the interim

While the big question of how to divide the net asset pool is being determined, it can be important to make arrangements that will operate in the interim for things like who is going to stay in the house, whether joint accounts are to be closed or remain open (and under what conditions), and what is to happen with any mortgage (and associated redraw facilities and/or offset accounts). A family lawyer can examine how assets are held and offer advice about how best to secure them.

Estate planning

Some aspects of separation can also affect estate planning, so it's important to review and update documents like Wills, Power of Attorney, and Advance Care Directives. Insurance beneficiary provisions and superannuation nominations should be reviewed as well.

Time limits for settlement

There are time limits for property settlements. De facto couples have 2 years from the date of separation to resolve it, while married couples have 12 months from date of the final Divorce Order. Most of the time, married couples should focus on settling property matters before getting divorced. An experienced family lawyer can give tailored information and advice about any relevant time limits.

A note on parenting matters

If there are children of the relationship, their best interests are usually the most important factor when making parenting arrangements after separation. Parents are encouraged to make arrangements and resolve disputes amicably. But, when agreement is not possible, there are a significant number of supports and resources available to help parents make suitable arrangements. A good starting point can be the Family Relationship Advice Line (ph. 1800 050 321) or speaking with a family lawyer.

Pathways to property settlement

The pathways to reaching a property settlement include: direct discussions leading to negotiated agreements, Family Dispute Resolution (FDR) or mediation services, lawyer assisted negotiations, and using the resources of the Courts. Once an agreement has been reached, it can be observed informally or recorded in a binding way.

Resources for pathways to resolution

There are lots of helpful support services and resources available to people contemplating or experiencing separation. Family Relationships Online is home to lots of resources, including a tool for locating nearby Family Dispute Resolution and community-based mediation services. It can be found here: https://www.familyrelationship....

Then, in addition to the Family Relationship Advice Line mentioned previously, there are helplines like 1800RESPECT and MensLine, that offer counselling and support for individuals facing relationship breakdowns, family violence, and mental health concerns.

Navigating family law matters can be challenging, but by taking preliminary steps and seeking support and advice, individuals can better navigate this difficult period. Prioritising mental health, seeking legal advice, addressing property and parenting matters, and considering the best interests of all parties involved, especially the children, are crucial. Seeking personalised advice from qualified professionals is important to account for individual circumstances. With care, understanding, and empathy, people can find fair and equitable solutions to their family law matters.

If you would like advice or direction from a lawyer about your situation, please contact Senior Lawyer, Morgan O'Brien-Powell on (08) 8231 1110 or send us a message.

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Nic Kernahan - Johnston Withers Lawyers


Nic Kernahan


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