19 Mar The 8 myths of separation
The top 8 myths of separation
Many of our clients come to see us with incorrect assumptions about their rights, and their ex- spouse’s rights after separation. To help you understand the process, we have put together a list of the top 8 myths of separation with answers:
Myth 1. “If I move out I lose my entitlement to the house/ I will get less in the property settlement”
The legal facts are that this should not prejudice the property entitlement of the spouse leaving. It may however give the spouse who is still in the house a strategic advantage by delaying the matter ie: leaving the other party desperate for a pay out and possibly agreeing to less than their entitlement because they are desperate for the cash.
Myth 2. “My ex- wife/husband has moved out of the house but is unpredictable and violent but it’s illegal for me to change the locks because my name is not on the house title”
In a typical family law situation such as this, the victim of the violence could seek an intervention order against their spouse and if appropriate the court would exclude the violent spouse from the home, regardless of which of them are on the title. The police would not normally be involved in either spouse changing the locks ie: it would not normally be seen as a criminal offence for one of the spouses to change the locks.
The Police would in most circumstances consider the matter a “civil” one and for the family law courts to determine upon either party apply, rather than seeing it as a matter for the criminal courts to deal with. Police may however get involved and may even lay criminal charges if there was already an intervention order in place and the party against whom the intervention order was made breached the conditions of that order even if they just went into the home to get their clothing and personal possessions.
Myth 3. “My name is not on the title and I am concerned that my partner will sell the house without my knowledge”
There are things that can be done to preserve assets and put notice out to the world of the rights of the spouse who does not have their name on the title eg: lodging a caveat. When a purchaser is looking through the paper work to buy the property and a title search is done in the normal course of conveyancing, the caveat will show up and will need to be resolved before the property can be sold.
Myth 4. “My partner is aggressive and violent. He has however told me that he has the right to see the children as he has “father’s rights”
Long story short, it is the child’s right to maintain contact with either parent subject to what the family law courts say is in the child’s best interests including their protection from harm. Often the family law courts will impose conditions upon the violent parent before or during contact (access) visits taking place eg: requirement for clean drug screens, abstinence from alcohol, mental health assessment, supervision of contact time, completion of an anger management course or counselling.
It is not an automatic right to see the children whenever and at whatever cost simply because of the status of a biological parent. This can become a complex area however and it is prudent to get the advice of a family law solicitor before making any decisions either way.
Myth 5. “My children are scared of my ex. What do I do? The children do not want to see him so I don’t think I should have to let him see them”
This is a difficult dilemma and really needs the attention of a family law solicitor after reviewing all of the facts including whether current court orders exist, if they are final or interim, what new circumstances have arisen since court orders were made, the history of the contact and if the contact parent has availed themselves of their scheduled contact allowed under orders, family violence, age and maturity of the children, and many other factors.
In urgent situations a client may not be able to access a solicitor and should talk to police, child protection services and the child’s doctor or psychologist to get advice if they are unable to see a solicitor.
Myth 6. “What do we do about our tv, computer, surfboard and other personal property? Surely I get to keep what I bought in ?”
If these are the only items of property being argued over, it is simply not commercially worthwhile to spend the money to go to court. Most mediation centres offer the first couple of hours mediation free of charge, and can assist parties reaching an agreement to divide these assets.
Before attending a mediation session it would be useful to list all items in the house room by room and then tick off which items you really want which are open to negotiation. If this fails then a letter of demand followed by a threat of court action may assist. Otherwise there is nothing stopping someone from making their own family law application for return of goods or transfer of goods purchased during the relationship.
Myth 7. “I am keeping the matrimonial home but I will refinance later. My partner said this is ok. I’ll leave it at that. What’s the worst that can happen?”
In this situation it is unlikely that the title can be transferred into one spouses’ name whilst the mortgage is still in joint names. If the parties agree for the actual transfer and refinance to be done down the track say in 6 or 12 months, you should still get a binding financial agreement done so that the other party sticks to the agreement, even if you think you have an amicable verbal agreement or non legal written agreement.
Quite often when third parties come along (family members, in-laws, new girlfriend or boyfriend) the situation changes and a claim is made instead of sticking to the original agreement. Worse still, if the second relationship ends the other ex may even be able to make a claim on the property. By that time the value of the home may go up and the claim made may include seeking a substantial pay out. The partner that has moved out may also get pressure from banks that he/she is seeking a new loan or mortgage from, as they will immediately see the old joint mortgage still in existence which may be an obstacle to obtaining new finance so that partner can move on.
Myth 8. “My partner took out a loan 5 years before we separated. Am I responsible for this loan? Can I get out of it by advertising that I am no longer with him?”
In most cases this debt would be considered a debt of the parties together and the balance as it was at the time of separation would be taken into account so that each party would equally bear same within the property settlement, whether they continue paying it equally or one pays and the other gets an adjustment off their pay out to reflect half of the total balance of the loan.
Until the matter is resolved by the courts the creditor can only really claim against the person who has the debt in their name along with anyone that signed a guarantee. There are however cases of wastage and special negative contributions which may change each party’s responsibility towards a joint loan/mortgage redraw. One example could be that the loan was taken without the other’s consent and used for gambling debts which arose without the other’s knowledge or consent. But each case is different. The family law courts have handed down many decisions on this point. An experienced family lawyer would be able to tell you how the debt would affect your entitlement in view of previous similar cases having been decided.
If you have any further questions on this topic– contact us today to take advantage of our free half hour legal consults. They can be done in person or via Skype or telephone conference.