The first essential steps to separation
When a relationship ends, it is important to be smart about how and when financial connections are severed. Although every family’s financial circumstances are unique, you should consider whether anything on the following checklist is relevant and requires action.
Bank and Loan Accounts
- If there are “joint” bank accounts/loans/mortgages, be sure to change the account withdrawal procedures so that both account holders have to sign as joint signatories to withdraw any funds. You might also consider limiting or cancelling any redraw facility.
- If there are accounts (credit or debit) in one spouse’s name that the other spouse has access to (i.e. as a supplementary card holder), you may wish to ask the bank to limit/cancel any access by the other spouse to the account.
- Be sure to change pin numbers and online banking passwords.
- Make arrangements for any direct debits out of personal bank accounts for the other spouse’s benefit to be changed.
Keep in mind that there may be adverse consequences if you unilaterally cut off all funding particularly if children are involved. We recommend you discuss these options with us very early in our instructions.
- If there is any real property owned as joint tenants, as distinct from tenants in common, it may be necessary to sever the joint tenancy.
- The primary reason to sever the joint tenancy after the breakdown of a relationship is to prevent a person’s interest in the property from passing to the ex-spouse, if you were to die before property settlement, rather than your share passing under your Will.
Conduct ownership searches (Business and Property)
- Perform or get your lawyer to perform company and personal name searches through ASIC to identify any businesses or companies in which the parties to the relationship might have an interest. It is very important to be aware of the state of affairs in any business or company either party to the relationship has an interest in.
- Perform title searches and personal name searches to identify any real property in which each spouse has an interest. It might be necessary to lodge a caveat over any interest the other spouse has in a property to protect any equitable interest you might have. You should seek legal advice from a team of Family Law solicitors prior to lodging any Caveat.
Wills and Power of Attorney
- When separating it is important to review and reconsider any Will, in particular, consider whether any amendment should be made to the Executor, Trustee or Beneficiary.
- If you have a Power of Attorney it is important to consider whether a new Attorney should be appointed if this was previously the ex-spouse.
- If there are children of the relationship and there is any concern about the other parent’s parenting capacity, it may be necessary to nominate a guardian in the Will so that if the person making the Will passes away, the guardian may challenge the living parent regarding who should care for any children.
Insurance and Superannuation
- If there is life insurance or an interest in a superannuation fund it is important to change the death beneficiary so that any benefit will not pass to the other spouse upon death.
- Before leaving the marital home, ensure all financial records of the relationship, which means records in the other spouse’s name not just the records in your name (or copies if unable to retain originals), are taken with you. These records come in very handy if distribution of property cannot be reached amicably.
- If you relocate from the marital home, make sure to redirect any mail and notify any organisations or institutions of any change of address.
- Notification to organisations interested in separation. We recommend the following organisations be notified of a separation: schools, sporting clubs, banks, places of employment, real estate agent’s, council and utilities providers and service providers.
- It is necessary to be separated for 12 months before filing for divorce. Once the divorce order becomes final, any property application must be made to the Court within 12 months. For example, if a divorce order is made in court on 4 January 2014, a certificate of divorce is issued by the court, and it becomes final on 5 February 2014, then the property application must be filed before 6 February 2015. The Court may allow a person to apply after this time limit if hardship for that party or the children can be established and a reason for the delay is given. If you haven’t divorced, there is no time limit about going to court to seek a property settlement with your spouse. However, the longer you leave it, the harder it is to convince a court to intervene.
- An application for de facto property settlement must normally be made within 2 years of the end of the relationship. However, an application may be made after this time if the Court is satisfied that hardship would be caused to the party or a child if leave were not granted, or if the application is for maintenance, that, at the end of the standard two year application period, the person is unable to support themselves.
It is very important that advice is obtained from a team of lawyers specialising in Divorce Law as soon as possible after separation if to do no more than discuss possible options and what might be a fair and reasonable outcome with your spouse.
Remember, 50 / 50 is hardly ever the correct starting point despite what most people think.