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

There are some time limits that apply to filing with the Court asking for a property settlement. If you and your partner were married you have one year from the date your divorce takes effect (one month from the date of the making of the Divorce Order).

If you are living in a de facto relationship you have two years from the date you separated. De-facto relationships are a little different to marriages. Because there is no document that proves the start or the end of the relationship there is often argument about those important issues. In most instances it is advisable to tackle your property settlement arrangements shortly after separation rather than leaving it too long. Because of possible uncertainties about the date of separation in de-facto relationships, early decisive steps to sort out property issues can be very important.

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.

Still, 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 want to separate — is there a form to fill in?

No. Nor is there such a thing as “filing for separation”.

All that is involved in separation is for one of you to decide it’s over and to start to behave as if you are no longer a couple. Separation also involves communicating your decision to your partner either by telling them or by your actions (coming home to an empty house for instance sends a clear signal).

The clearest indication of separation is when someone moves out of a shared residence. However for various reasons (e.g. no money to move, can’t care for the kids on my own), couples often remain under the same roof after separating. If you are still living in the same home and you or your partner has told the other that the relationship is over, you are likely to be considered as separated if you can comply with most of the following checklist:

• You no longer share a bed;
• You and your partner no longer have sexual intercourse;
• Relatives and/or friends have been told of the separation;
• You no longer eat your meals together or carry out household chores for one another;
• You do not go to social events as a couple;
• You no longer behave in ways that would present yourself to the outside world as a couple.

When we got together I had money in the bank as
well as a home and a houseful of furniture so
why should my wife get any of it?

Just because you owned something at the beginning of the relationship does not mean it is quarantined from claim by your spouse or partner. The bad news is that except in very limited cases all property of the parties to the relationship is included in the asset pool to be divided.

That doesn’t mean that your initial contribution (that what we lawyers call the assets you entered into the relationship with) will necessarily be ignored. It will depend on a number of factors such as the net value of these assets, whether you still have that particular asset, other contributions during the relationship, whether the relationship was brief or lengthy.

I don’t work. How will I pay the bills
now that I have separated?

If you can’t support yourself and your husband has money left over after meeting their own reasonable needs you can apply to the court for “spouse maintenance”. The same is true if you were in a de-facto relationship for periods totalling at least two years provided you have a child together or you made a significant contribution to your partner’s assets or to their family and as a consequence of which it would be unjust for a court not to make the order.

Time limits apply to bring applications for spousal maintenance. If you were married the application should be started before the first anniversary of your divorce. If you were a de-facto couple the application should be started within two years of separation.

I have always looked after the kids whilst their
dad went to work. Now we have separated their
dad wants them for half the time.

This should happen only if it is in the best interests of your children. The law does not say that this should happen and it certainly wouldn’t be a likely outcome if there is a high level of conflict between the parents or a history of domestic violence or if the children are very young.

On the other hand arrangements where dads only see their children on alternate weekends and half school holidays are also an unlikely outcome. Most often the solution lies somewhere in between.

Keep in mind that the arrangements you make are always subject to factors such as the children’s ages and that these factors can change over time. For instance very young children may not tolerate lengthy periods away from the person with whom they have their primary attachment (usually but not necessarily their mother). But as they grow older their capacity to spend greater time with the other parent including overnight periods will increase. The level of conflict between parents is another significant determining factor as to whether this proposal is the best option for the children.

I want to separate. How 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.