10 Common Questions when contemplating separation (Part 2)

Hello everyone

Last month I started going through a list of the 10 most common questions I am asked by clients who have decided they want to end their relationship. Here is the second part of the list:

5. Can I change the locks?

As I said last month there is no rule as to who should move out of the house. But once one person does leave, I often hear complaints about that person “dropping in” uninvited and unannounced. Despite the fact the house may be jointly, owned the person who stays has a right to quiet enjoyment of the house and thus has every right to change the locks, so that the person who has moved out can not some back in uninvited. I often compare the situation to landlord and tenant.

If the person who has left breaks in the police are unlikely to charge them with trespass, but it is an invasion of privacy and you are likely to be able to get an intervention order or an order for exclusive occupancy of the property if that occurs.

6. Can I take the kids?

Each case it different and it will depend on the needs of your children as to where they will ultimately reside. But in most cases, if you have been the primary carer of the children during the marriage, and you move out, then you are likely to take the children with you.

If you do, you absolutely must tell the other parent where you are going to be, how they can contact the children and you should try and put some arrangements in place for the other parent see the children as soon as practicable.

Children have a right to see and spend time with both parents.

If you disappear with your children, without letting the other parent know where their children are living, then it is likely the other parent will be able to get a recovery order so that the Federal and State police will be ordered to locate you and return the children to the other parent.


7. What can I expect them to pay?


When you separate you should immediately apply for child support through the child support agency, if you are the person who has the children for the majority of the time. The amount you will receive will depend on the incomes of both of you and the care arrangements for the children.

If the other person is the primary bread winner it is possible that you might also receive some spousal maintenance. In most cases spousal maintenance orders are for a limited time only and most (but not all) end when you have a property settlement.

Many people continue to jointly pay debts and children’s costs after they separate without the need for an order, but if you are unable to pay your bills and living expenses because the other party has limited your access to joint funds, then you should immediately apply to the court.

8. Should I get a caveat?


If your name is not on the title of any property that is a marital asset, then yes you should get a caveat to ensure the property is not sold without your knowledge. If property is in joint names, you do not need to go to the expense of obtaining a caveat as the property cannot be sold without your consent.

9. How do I get an intervention order?

If you are or if have been the victim of domestic violence. If you are or you have been threatened, verbally or physically. If you are being harassed or stalked you should immediately attend the closest State’s Magistrate’s Court and apply for an Intervention Order.

You do not need to a lawyer to apply for an intervention order.

Intervention orders are commonly used in Family law proceedings, and in my view over used. But if you are the victim of domestic violence or harassment you should have no hesitation is applying for an order. Police are, unfortunately, reluctant to attend “domestic” disputes. If they are aware there is an intervention order in place they will react quickly.

Breach of intervention order is a criminal offence. Serious breach can result in a term of imprisonment.

10. When can I file for divorce?

One year and one day after you separate, and not a moment before.

You can apply for divorce any time after you separate. Many people think you have to sort out your finances at the same time. This is incorrect. A divorce is a simple and discrete application.

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