Separation of living arrangements – how do we do it?
Spouses who live together can separate from one another in a few ways:
1. Both parties continue to live together, separated under the one roof, meaning that you live separate lives, sleep in separate beds and maintain separate schedules, but you still live in the same home.
2. One party vacates the property while the other lives in the former joint residence.
3. Both parties leave the former joint residence and live separately.
How do we reach an agreement about how to separate our property?
There are many ways you can try to reach an agreement with your former spouse about the separation of property:
Informal negotiations/discussions
These discussions can occur between you and your former spouse and do not require a solicitor. It can be beneficial for each of the spouse parties to obtain independent legal advice before they enter into informal discussions, however, some parties wish to resolve matters amicably between themselves, without the intervention of lawyers.
Settlement discussions through legal representatives
These discussions are generally on a ‘without prejudice’ basis between legal representatives. The process often involves solicitors corresponding through letters, making offers in relation to the division of assets and what each of the parties is to receive.
Mediation
This can occur:
– privately, where the parties engage a mediator (who is generally a solicitor or a barrister) to mediate. A mediator will assist with narrowing issues in dispute and trying to bridge the gap between the parties about resolving the matter. The parties can have legal representatives attend with them in this process, or they can attend on their own. Mediations can occur in joint sessions, or via a shuttle process where the parties are in separate rooms and the mediator ‘shuttles’ between them.
– through a centre that offers mediations, often at subsidised rates such as Relationships Australia. These sessions often do not have solicitors present and are generally more suited to parties who are amicable.
Other forms of Alternative Dispute Resolution (ADR)
Parties might decide to attend other forms of ADR at different stages in the separation process, including conciliation and arbitration. In this article, we will not go into the different forms of ADR.
Commencing proceedings/Going to Court
If the process of negotiation fails and you are unable to resolve your dispute, one party may elect to commence proceedings in the Federal Circuit and Family Court of Australia, seeking a division of property.
Commencing proceedings is often seen as a last resort, due to the costs associated. Even though you may have already attended mediation, the Court will likely order that the parties re-attempt mediation or conciliation at some point after proceedings are commenced.
At Streeterlaw, our team of family law solicitors can assist you with all aspects of your family law matter, whether it be planning the steps you should take to separate, facilitating negotiations between you and your former spouse, attending mediation with you or even commencing proceedings (if required). Call our office today on (02) 8197 0105 or email contact@streeterlaw.com.au to get in touch with one of our solicitors today.
Come back soon to read Part 2 of this mini-series, which will set out the different ways you can reflect your agreement, as well as what happens when you can’t agree.
