10 Common Questions when contemplating separation (Part 1)

Hello everyone

I often see clients who have decided they want to end their relationship, but they don’t know what they have to do, who they have to tell and how to manage the actual physical separation. So here are some answers to some of the most common questions:

1. Who moves out?

There is no rule that sets out who should move out of the house. It is possible for couples to be separated under the one roof, but this means more than just not sleeping in the same bed. It means a change of relationship, you do not go to places as couples, you do not “help each other out” and you live separate lives much like flat mates.

One person can not be forced to move out because they have “done the wrong thing”.

Your rights are not adversely affected if you are the person who leaves, but in general the person who stays in the house is less likely to want to rush a property settlement as they won’t have accommodation issues.

Also bear in mind that if you are the one to leave, it is unlikely you will ever be allowed back.

2. What money can I take?

Money in joint accounts is just that – joint funds. Money in your name, but which has been accumulated during the relationship is also a relationship asset.

There no rule about what you can take. In simple terms you can take all the money, but this will cause a great deal of animosity and will not help in negotiations.

You can take half of some other “reasonable” sum should you choose.

Any money you take is likely to be deemed as a part of your property settlement so if you spend it unwisely the other party will not have to compensate you for your bad spending.

You can leave bank accounts as they are and both continue to use the accounts as normal, until matters are resolved. If you leave things as they are make sure you are diligent in making sure the other person is not exploiting the situation by keeping an eye on the accounts.

3. Can I take the furniture?

Yes. You can take whatever you want from the house. I have had matters where one party has removed everything, when the other party has been at work, leaving only one cup plate and set of cutlery.

Furniture is a relationship asset. It is best to divide it by agreement as you can spend a lot of time and money arguing about furniture and chattels.

Furniture is not given its insurance value but its secondhand value. A house full or furniture (without antiques or significant artwork) is unlikely to be worth more than $10,000 to $15,000 on a second hand basis so it is far better to divide it by agreement than argue about it.

4. Who pays the mortgage and bills?

The court will usually expect the person in the house to pay the mortgage as the person who has moved out has to pay rent. That said if the person in the house can not pay the mortgage the other person will have to contribute.

The bank will not care who is living in the house and if the mortgage is not paid you will default and each of you will get a bad credit rating.

It is a very good idea to go and see your bank manager and explain that you have separated. If they know the house it likely to be refinanced or sold they may give you some relief. To this end I suggest you go to the bank and see the manager rather than speak to someone at a call centre to ensure your mortgage file is clearly marked.

Next month, in Part 2 I will answer the following:-

5. Can I change the locks?
6. Can I take the kids?
7. What can I expect them to pay?
8. Should I get a caveat?
9. How do I get an intervention order?
10. When can I file for divorce?

As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555