De Facto or Marital Separation Agreements
Separating from a long-term partner whether you are married or in a de facto relationship can be an emotionally draining and a financially devastating time. Often coming at the end of a long and difficult process, the decision to leave is not usually an easy one, especially if children are involved.
Married couples who no longer wish to live together as husband and wife, but who are not divorced, are classed as being separated as are 'de facto' couples who no longer live together.
The Family Law Act 1975 Sect 49 defines separation as
(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.”
Usually the couple who has separated will live in separate dwellings although as the Act states it is not always necessary to live separately to be classed as separated. The parties may be separated although living under the one roof.
Marriage is a contract under law, binding the couple to various rights and obligations pertaining to property, children and maintenance of the partners. When a marriage breaks down and the partners separate (or divorce) then provisions for these marital obligations must be put in place.
Recent amendments to the Family Law Act which came into effect on 1st March 2009 now give de facto couples (inc same sex couples) the same access to the law as married couples have had since 1975. So now entitlements fall under these laws.
Part of the marriage separation process may involve a separation agreement. Separation Property settlements may be resolved by entering into a financial agreement or an agreement with ‘consent orders’ being made by a family law court.
A settlement of property can be finalised at any time after separation and before either spouse applies for divorce. However, a court application for settlement of property or spousal maintenance must be filed within 12 months of the divorce, or you will need the court’s permission to apply out of time.
A consent order is a written agreement that is approved by a court. A consent order can cover parenting arrangements for children (a ‘parenting order’) as well as financial arrangements such as property and spousal maintenance, no matter whether the couple are married or de facto.
The difference between a Financial Agreement (FA) and Consent Orders dealing with division of property or parenting arrangements is that the FA does not need to be lodged with the Court for approval, and is not subject to review by the Court.
Whilst parties have to wait 12 months from the time that they separate until they can apply for their divorce, they can resolve property matters between themselves by making a FA under section 90C or 90UD of the Family Law Act.
The parties may elect to enter into a Financial Agreement in preference to Consent Orders where they require certainty of outcome, rather than having the court impose its view of how assets are to be divided.
A financial seperation agreement made under section 90C or 90UD allows the partners to decide for themselves how to manage these obligations without the need for entering court proceedings, reducing stress and the risk of extended litigation.
Reaching an amicable separation agreement quickly about debts, assets and property offers many advantages;
- you get to make your own choices
- you significantly reduce the financial and emotional costs of taking the matter to court
- you can ensure more open communication with your former partner increasing the likelihood of improved conflict resolution in the future
- your ongoing relationship as parents, if you have children, is likely be more harmonious and
- you are able to move forward with your life without the strain of ongoing court proceedings.
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