10 Common Separation Questions

1. Can I change the locks on the house?

If the house is in your name you can. Usually both parties have the right to live in the house but if your ex has moved out or if your safety is a concern to you with them living with you then you can change the locks to protect your safety. You should let the local police know if you feel that you are in any danger at separation from your ex-partner.

2. Should I move out or will that harm my interests?

Neither party has to leave the house. But often it is emotionally and physically safer for both of you and the children for one party to leave. If you leave the house without the children then you can face significant disadvantages. If you move out then you will usually be the one who needs to act first to get your entitlements, and you can lose your personal property and effects if you don’t take them with you when you leave.

3. Can I move out?

Yes. If you have the money to rent a place or friends to move in with then this may be an option for you. You may apply to get some assistance from Centrelink such as for a bond if you have limited or no income providing you fit their particular criteria for receiving assistance.

4. What about the furniture. Do we share this?

Often parties agree to share the furniture. If you can’t agree then the division of furniture can be decided by the Court.

5. Who has to pay the mortgage?

Usually the person continuing to live in the house pays the mortgage. If you cannot agree who pays the mortgage upon separation then a Court can decide by taking into account each of your earnings, and capacity to pay.

6. What about the joint bills eg. rates, electricity, gas, telephone? Who pays these?

The person who stays in the residence will generally take over responsibility of those joint bills. If you can’t agree then the Court can decide. As with the mortgage repayments the Court will look at each of your capacity to pay the running costs of the home or houses that each of you may be living in.

7. What if I am not working and cannot afford to pay anything? What do I live on?

You can apply to the Court for a payment called “spousal maintenance” if the other party can afford to pay money to you for some of your living expenses from their income or financial resources. You may need to go to Centrelink and see what financial assistance you are entitled to receive.

8. Can I sell my car or jewellery for some money until we sort this out?

Yes, unless there is an Order from the Court to the contrary. However, the proceeds from anything you do sell will be taken into account in the overall property division so it is important to keep receipts or a record of the sale if you sell any assets after separation.

9. Can I use the joint account?

Yes. But it is better not to take all the money as this won’t help generate goodwill for future discussions.

10. Do I need a lawyer?

If you can reach a settlement by agreement you may not need a lawyer providing that agreement is signed by each of you in the correct legal form which can then be filed at Court and made as a Court Order. You may need legal assistance in drafting these Orders and if the other party agrees then they do not need their own lawyer. If you can’t agree then you may well need a lawyer to advise you on your entitlements.

• assets and liabilities at date of commencement of the relationship
• assets and liabilities at date of separation
• date of marriage and the date of separation
• date of birth of the children • income details
• super statements

Once we have a broad idea of what your case involves then we can advise you of your options.