Can I Afford to Separate?

A factor for many people when considering separation is the effect that such a significant step in their lives will have upon their financial circumstances. We find that many people will endure problematic, even violent relationships, through fear that they will not be able to financially support themselves and/or their children to separate.

The intention of this Blog is to raise awareness of your rights while getting separate and to flag potential issues, whether that be as a party who is entitled to financial assistance or a party who may be required to financially assist the other.

To get separate, should you be unable to financially support yourself, you should attend your local Centrelink office as soon as possible, to inquire as to any financial assistance and benefits which may be available. In some circumstances, there is emergency funding available from Centrelink.

In so far as child support is concerned, it is important to be aware that child support only begins to accrue when a child support case is lodged with the Child Support Agency by a parent. As such, it is important that should your former spouse not be financially supporting the Children, that you consider lodging a case by calling the Child Support Agency as soon as possible.

Should you be unable to financially support yourself while getting separate, your former spouse may be required to financially support you, such financial support being known as spousal maintenance. Spousal maintenance is not likely to be ongoing and is usually for a nominated period of time so as to enable you to re-establish yourself in your new life. It may be to undertake further training or until the children are of an age that you can increase your work commitments. To make a successful application for spousal maintenance, you must show that:

  1. You do not have the financial capability to support your own needs, considering your income and reasonable weekly living expenses;
  2. Your former spouse must have the financial ability to pay, essentially meaning that they have excess monies remaining each week after the payment of their reasonable living expenses.

Spousal maintenance may be in the form of a periodic payment such as regular cash payments or the mortgage repayments associated with the occupation of the former family home or non-periodic payments such as the payment of other expenses associated with the occupation of the former family home, such as rates and utilities.

Should you reach an agreement as to the payment of spousal maintenance, you are able to enter into Consent Orders or a Binding Financial Agreement. It is important to obtain advices as to the most appropriate manner in which to formalise your agreement in a binding manner.

Should Court proceedings be necessary and a party not be in the financial position to seek parenting, property settlement and or spousal maintenance Orders, there are options available.

Such options include partial property distribution, such as release of monies for a person’s benefit or should such monies not be available, release of monies upon the sale of an asset of the relationship such as shares or real property. Monies received as a result of such partial property distribution may be used for reasonable living expenses and or legal fees.

Another possibility where one party may be unable to afford legal representation is a litigation funding Order. In these circumstances, the Court prefers to see that both parties have equal access to representation, if possible. Such Order may “attach” to a particular asset, for instance cash in bank or require the sale of an asset for this purpose. Should there be no such assets to which an Order may “attach”, it may be possible for a “dollar for dollar” Order to be made, which essentially provides for the party who is represented to pay to the Solicitor for the other party the same amount of money they periodically pay into their Solicitor’s trust account, thereby attempting to ensure equal representation for both parties.

Should finances be a problem, a further possibility is to obtain funding from Legal Aid Queensland.

Should you consider any of the issues mentioned in this Blog may apply to your circumstances, telephone our office on (07) 5679 8016 for a free fifteen minute telephone conversation with one of our Family Law Solicitors.

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