The association between `separation’, divorce’ and `property settlement’ is a close one, but often misunderstood.
Separation is the act of communicating an intention to suspend or end a relationship. A couple needn’t agree to separate but there is a need for one party to communicate the intention to separate to the other. A couple can be separated under one roof.
Divorce is a formal application to the Court that follows separation. The only requirement for a divorce is the ‘irretrievable breakdown’ of the marriage established by a period of separation for 12 months or more. Unlike our American friends, a `quickie’ divorce is not possible. Where there are children of the relationship, there is a need to satisfy the Court that there is proper provision for their wellbeing before the Divorce Order will be granted. Upon the Order taking effect, remarriage can take place.
A divorce does not prompt property settlement, nor prevent any claim against property per se. Many effect a property settlement but do not divorce. Some divorce, but choose not to effect a property settlement (generally on the basis that there is very little or nothing to divide). If the Court’s intervention is necessary to effect a property settlement then it must be sought within 12 months of a divorce Order taking effect, so I recommend that property settlement issues are sorted prior to making application for divorce. Whilst some have property settlement terms agreed within weeks of separation, it generally takes time for one or both parties to adjust to separation, and more often than not property settlement is sorted out around the first anniversary of separation. There is no right, or wrong way.
If separating from a de facto partner it is necessary for property settlement proceedings to be initiated in Court within two years of separation. Fortunately, the majority of cases are resolved by agreement and formalised with the appropriate documentation without knocking on the Court’s door.
I’ve spoken before in this column about the value of a facilitated separation process, where a couple work with an appropriately qualified mediator or therapeutic professional to reach a consensus on the big ticket items like:
- Is separation the answer?
- How do we safeguard our children if we are not to remain together ?
- How will we remain on one page when it comes to parenting our kids ?
- How do we maximise what we do have financially in order to protect the interests of the whole family unit ?
- Do we wish to formally divorce ?
- How do we transition our kids to the prospect of new relationships ? and
- How do we prevent the conflict spiral ? can we agree about how we’re going to handle differences of opinion in the future?
It’s important to ask yourself these questions. As always, nothing can replace advice from an experienced family lawyer when negotiating the separation path.