You made the tough decision to move on, what now?
by AARON FARR
6th October 2020
By Aaron Farr
SEPARATION, divorce, matrimonial settlement.
No matter what term you use, taking the huge step to leave your spouse or accepting that they have left you is an emotionally stressful and unsettling time.
It is even more so if you don’t know which way to turn or who can help you.
It is a very lonely time.
From seeing this regularly, daily in fact, I can assure you that this is temporary and a whole new chapter of your life awaits you… but first, let’s face the matter head on and protect you — together.
There are a number of aspects of a separation when we look at it from a legal angle and I will cover some of these below.
But before I do, the most important thing is you and (if applicable) your children’s safety.
Sadly, following separation, it is not uncommon for raw emotion to get in the way of what should be an amicable arrangement.
Sometimes, this can end up in you or your family being concerned for their safety.
To be clear, there is nothing a lawyer can do to ensure your safety from an immediate perspective.
This is a police matter and they can assist you ensuring your safety and protection.
An Intervention Order is relevant here and is a court order usually applied for by the police on your behalf.
Unfortunately, this process is sometimes abused and you might find yourself on the receiving end of one.
Navigating the law and process of both applying for (either with the police or on your own) or receiving one is something a lawyer can assist with once the immediate safety concerns are dealt with.
An Interim Intervention Order may be put in place promptly and then the Final Intervention Order may be granted following a legal process.
An Intervention Order can affect you in a number of ways from a criminal record, reducing work prospects, suspending your firearms licence and having your firearms confiscated, and of course, it can affect your Family Law Matter.
The term divorce is thrown around in society as being used for any kind of finalisation of a marriage.
The first comment to make is that whether a couple are married or in a de-facto relationship, the legislation is essentially mirrored.
When dealing with a separation of a married couple, divorce (in a legal sense) is isolated to the divorce order which, without sounding insensitive, means you are not legally still married and you can now marry another person if you so wish.
This is completely separate to any financial or children’s matters.
When it comes to the process, we always advise parties to finalise the financial and/or children’s matters first as once a divorce order is granted, time limits commence which may affect your financial matters.
When dealing with any financial matters, you need to know what you would be entitled to if the matter were to progress to court.
I know…the dreaded word “court”.
At Rush & Hampshire, we do everything we can to keep you out of court as the legal and court fees will likely exceed the gap between the parties’ offers.
The vast majority of matters settle either between the parties or their lawyers.
In saying that, in some matters there is no other option than to issue proceedings but this is not done lightly and we clearly set out the possible costs involved.
Sometimes this is a strategic move but in some matters we must strap in for the long haul due to a difficult party.
Once you know what you would receive at court in a financial settlement, you will be equipped to negotiate, either yourself if you feel confident enough to, or alternatively, we can act on your behalf in this respect.
If your matter is in the vast majority then once negotiation has been completed between the parties, either with or without lawyers, and you have agreed on a settlement, we can assist you to draw up the appropriate paperwork.
In order to protect yourself moving forward, there are two ways you can settle your financial matters.
Firstly, if both parties have lawyers, a binding financial agreement may be drawn up.
There are strict rules on how these must be completed by the parties and it is important that the document and the process of executing it complies with legislation and case law to avoid it being open to an application to be set aside.
Secondly, and more commonly used either when neither of the parties are represented, one party is represented or both parties are represented, is consent orders.
Consent Orders are an application to the court with the orders the parties have agreed to be made.
The court will then ensure these comply with the legislation and case law and if approved, they are sealed in chambers.
This means there is no appearance or court hearing required.
It is important that the consent orders and application is drawn correctly to ensure there is compliance with the legislation to minimise the chance of it being rejected.
Children’s matters are completely separate.
The media and TV/movies may have you referring to this as custody.
A number of client’s prefer to keep the children’s matters separate from the financial settlement and either stick with the status quo or amicably work towards a mutual informal agreement.
Children’s matters can be addressed as part of the consent orders if the parties wish but similarly to if the parties cannot agree, there may be certain circumstances where the only option is to proceed to court.
Again, due to the costs involved, this is a last resort.
Regardless of whether you wish to address the children’s matters as part of your separation with solicitors or not, you need advice to ensure you understand what your rights are so you can proceed to obtain a just result.
The child’s or children’s best interests are paramount in all matters.
On a side note, you also need to be aware of the child support ramifications of your children’s arrangements.
Family Law is a very involved area of law and very distinct to all other areas.
Every matter is different and unique and therefore there is no “one size fits all”.
It is important you know your legal position and are guided through the practical aspects of your matter so you can get a just or good result.
At Rush & Hampshire Barristers & Solicitors, we generally meet with you for an initial consultation and then assist you moving forward based on your needs following discussing the options with you.
We tend to relate this to a smorgasbord; we present it and you choose which meal you want and then we can tailor it for you.
Rush & Hampshire Barristers & Solicitors are still available full time, working from home as most of us are of course, due to the current restrictions.
We can arrange a time to meet you via telephone or video conferencing.
Feel free to call us to see how we can help you.
If you wish to phone us and reach our voicemail, please leave a message as we are prompt in our responses.
Alternatively, you can send us an email but please include your phone number as we will need to call you to discuss your requirements.
Aaron Farr is the Principal Lawyer at Rush & Hampshire Barristers & Solicitors, 163 Yarra Street
Telephone: (03) 9844 4646