I want to separate. Should I move out of
our home?

Although moving out of the home does not mean that you give up any rights there may be practical reasons why it is not the best decision. These include:

• Your spouse or former partner may not keep the home in the same condition you would and this may affect the value of the property. The last thing you want is for your partner to get the property cheaply as part of the settlement because they have let it run down;
• Where there is a minimal mortgage payment, your partner may have little incentive to settle property matters because they are receiving the benefit of cheap housing while you have to find alternative accommodation and possibly pay rent; In deciding where children live, it is likely to be relevant consideration that one parent can provide the stability of familiar surroundings;
• When property prices are low, keeping the home as part of your settlement can be a considerable windfall in the long term. If you and your former partner both want the home in the settlement, you significantly lessen your chances of success if you move out and they remain living in the property.

I want to separate. Can I get my partner to
move out?

If they won’t leave voluntarily there are very limited circumstances in which you can force them out. If there has been domestic violence you can apply through the Magistrates Court for a protection order that orders your partner to stay away from you and where you live. The Family Court can also order your spouse or partner to move out as part of property settlement proceedings.

Can I change the locks on the house to keep my husband/wife out?

You can if you are an owner or co-owner of the property and it might be a very sensible thing to do if your partner has already moved out and you don’t want them moving back in. One of my clients came home from work to find her husband, who had moved out months before, in the bathroom taking a bath.

While changing the locks is a good way to make sure that you don’t come home to the unwelcome surprise of a housemate you don’t want, using that tactic is far less sensible or effective to get that unwanted partner to move out. Keep in mind that if your partner is a co-owner they are also entitled to change the locks which can give them entry and exclude you.

If you are a tenant you should not change the locks without the agreement of the landlord.

I have heard that I need a Property Settlement. What is that?

“Property Settlement” is the term used to describe the process for dividing up your assets i.e. what you and your partner own at the end of your relationship or marriage.

By property does that mean just real estate?

No the definition of property is very broad and includes not only real estate but also investments, businesses, cars, furniture, jewelry, companies and trusts.

How long after separation do I have to sort out my property settlement?

There are time limits that apply if you can’t agree and have to ask the court for help in working out a fair property division. If you and your partner were married you have one year from the date your divorce takes effect. If you are living in a de facto relationship you have two years from the date you separated.

If you delay in taking steps to sort out your property your rights may be effected e.g. by your former partner reducing the value of the assets to be divided. If you are in any doubt please call us to discuss your situation.

I want a 50/50 split of our property but my wife says it’s not fair. Who’s right?

The Family Law Act sets out what is taken into account in working out the legal equivalent of a fair property division. However it doesn’t define what value or percentage split of assets between couples is a fair result. The decided cases specifically say that 50/50 is not a starting point. In practice three different judges or federal magistrates hearing the same matter are likely to come up with three different versions of what is fair.

The bottom line is that letting a court decide does not give you certainty and usually settling your property division directly with your spouse is a much quicker, cheaper and better option. One of the reasons you should always use a specialist family lawyer to guide you through that process is so they can give you realistic expectations of what a fair outcome is likely to be.

How long will it take to get a property settlement?

If you apply to a court to decide about financial matters (property settlement and spousal maintenance) it will usually take between nine months and eighteen months. This is the time between starting the court action by filing your application and the date of the final hearing. However, you will need to keep in mind that after the final hearing it may take between one and six months before the judge or federal magistrate makes their decision.

Are the assets that I bring into the relationship quarantined from claim by my partner?

No. The assets you have in your name before you marry or start living together can be subject to claim by your spouse or partner. The only way to protect, or quarantine, those assets from a property settlement claim is through the use of a Financial Agreement (before or during the relationship. Go to the pre-nups tab for further information.

I want to take the *!!**! for all he/she is worth; are you the lawyer for me?

Emphatically not. Not if all you want is to get even because that's not what we do. Don't get us wrong, we're in your corner but by focusing on them you are taking your eye off what is really important — getting the best possible outcome for you. This might seem like the same thing but in practice it is not. It’s important that your lawyer has a clear idea of the realistic outcome and the means to achieve that outcome.

Asking your lawyer to narrow your options to the single-minded pursuit of a destructive outcome might seem worthwhile to you now but you are unlikely to find the result palatable and you certainly won’t like your bill.