First steps after separation: dividing assets

After a tough split with a partner, it can be hard to navigate the legal side of your future under such overwhelming circumstances. At Bilson Law, we aim to support you with the information you will need to answer those first questions as you begin your journey through the world of law.

I’VE JUST SEPARATED. WHAT SHOULD I DO FIRST?

Separation can be a difficult and emotional process. Getting advice from loved ones and friends can be helpful, but all people will form opinions—some potentially misleading because of missing information. It is important to obtain informed legal guidance to understand property settlement as well as protecting your best interests appropriately.

To be brief, property settlement is the legal process of dividing assets, liabilities and/or financial resources (e.g superannuation) between two separating parties. It means a fair, equitable agreement has been met with the consideration of interests from both parties, formally severing their financial relationship. Property settlement also protects you from any future claims made against you from an ex-partner if circumstances change regarding them or the separation.  

Property settlement is a central part of a consent order. A consent order is a legally binding agreement between two parties made by the Federal Circuit and Family Court of Australia (Family Court) with consent from you and your ex-partner. After it is approved and finalised, it carries the same authority as a court order.

When going forward with property settlement, it is always better to discuss and mediate with your ex-partner in order to avoid conflict, delays or an unfavourable outcome. To get to that point, you should consider communicating with your ex-partner to participate in the property settlement. During the conversation, it would be advisable to discuss immediate matters such as bills, housing and personal items as well.

But before this it is essential that you seek support from a psychologist or counsellor. Understanding how you are feeling and processing hurts will be critical to:

• Keep focused on your goals. Some people will end up spending excessive legal fees in pursuit of outcomes that are not aligned with their true purpose.
• Improve communication strategies. Communication is fundamental to negotiation. Understanding underlying triggers will be critical for effective communication.

In addition, you may want to consider ensuring your own safety and future prospects through a few measures.

• Secure your finances and contact your bank—close joint accounts and cards, remove anything that can be used by your ex-spouse to access your funds and account. Review financial statements and negotiate any joint debts to consolidate them if possible.

• Secure important documents such as your marriage certificate, birth certificate, passports, driver’s license, insurance policies, bank and credit statements.

• Change passwords, log out of apps (even for smaller things like a supermarket app if needed).

• If needed, consider creating new emails and accounts as well.

• Review any apps that could share your location with your ex-partner.

• Change next-of-kin details in your workplace, with medical professionals, etc.

• Update utility accounts, beneficiaries and insurance policies.

• If you have moved, make sure to arrange for statements and correspondence to be sent to your new address.

It is also of importance to note that you are entitled to self-care, to feeling at peace and not spending a disruptive amount of time on your ex-partner. If thinking and/or communicating with your ex-partner is causing you stress, impacting your mental health and daily life, you can facilitate boundaries to aid your emotional state. You are entitled to seek support from whoever you wish, whether that is counselling or legal advice. Ensuring you feel supported and have access to helpful resources can better promote an amicable relationship with your ex-partner, allowing you to better ease into the property settlement process.

Do I need a lawyer straight away after separation?

In Australia, you are not legally required to hire a lawyer for property settlement, especially if you have an amicable relationship with your ex-partner. If they are cooperative, it is possible to divide assets on your own. It is common for two parties to negotiate beforehand themselves and have a lawyer draft and/or review the final agreement.

However, it still is highly recommended to seek legal advice. This is to ensure that, before signing any binding agreements, you can verify its equity and your own rights. It is also helpful to obtain legal advice before signing an Agreement so that you can make sure that the way that the Agreement is drafted is actually binding. For example, a lawyer will be able to tell you what would happen if, in a worst case scenario, someone is not compliant with the Agreement.

While the short answer to this question is no if you had an amicable separation, there are other circumstances where you may consider getting a lawyer immediately upon separation:

• Your ex-partner is attempting to steal, hide or sell assets, requiring immediate action.
• Your ex-partner using coercion to form an unfair agreement.
• Family violence is involved, and your safety may be compromised.
• The asset pool is complex (e.g shared businesses, overseas assets).
• Reassurance for full financial disclosure between both parties.
• Pressures from a complex family dynamic.

What if I can’t afford legal fees during separation?

There are free legal support services via government aid or local legal centres across Australia. Some firms offer free consultations for the first half hour as well.

Here’s a list of reliable and affordable legal support services:

• Legal Aid NSW: A state-wide independent government agency that helps people in NSW with their legal problems, including services such providing legal information, advice, and representation in court if applicable.
• Community Legal Centres: Independent, non-government organisations that provide free legal help to people in need.
• Aboriginal Legal Service (ACT/NSW): A community-controlled organisation responsible for providing legal assistance to Aboriginal people in NSW and the ACT.
• Rise & Resolve: Created by Jacqui Bilson, Principal Solicitor of Bilson Law, this program provides clear, practical guidance through every stage of the property settlement process.
  • As part of the program, you will receive:
    • A Guidebook – with key information to help you navigate the process;
    • A Workbook which is posted to you – with worksheets to ensure you are organised and in control.
    • A Journal, also posted to you – to help you process the separation and keep you focused throughout the process.

Can we separate amicably, or does it always get ugly?

You and your ex-partner may have separated on friendly terms. If that is the case, an amicable separation is entirely possible, as long as it is managed well with mutual agreement. Having a lawyer review your consent order before signing it off is optional, but highly recommended in order to prevent unfair outcomes prior to finalisation.

If you often run into conflicts or disagreements while negotiating with your ex-partner, finding a mediator could be the solution. Negotiation is a stressful process within a tough split with a former-loved one, and can raise more emotional disputes leading to poor communication or a complete shutdown of communication. As previously mentioned, proper communication is important—having a third party neutralise the conversation, clarifying misunderstandings along the way can be crucial to reaching a fair final outcome.

A mediator is professionally trained to provide a non-biased, independent perspective to facilitate an agreement. When hiring a mediator, confidentiality is guaranteed in a private meeting between the two parties and the mediator themselves, allowing for the discussion of sensitive issues without fear that the information will be used later in court. A mediator can suggest more solutions that could be suitable for you and your ex-partner, and they are generally less expensive and time efficient in comparison to formal legal proceedings.

You can also request shuttle mediation, where a mediator goes between you and your ex-partner to communicate rather than having both parties in the same room to prevent conflict. Another way of conducting your mediation may be through video conferencing, which can be beneficial if you and your ex-partner are in two different geographical locations or for simple convenience.

Remember to:

• Decide on a mediator together with your ex-partner. Either party can provide a list and choose from it—having chosen the mediator together provides a sense of mutual security and trust in the selected mediator. You can also discuss price ranges in selecting the mediator.
• Have your financial disclosure prepared.
• Have a draft balance sheet ready.
• The Rise & Resolve program provides a step-by-step guide to:
  • Invite your ex to mediation;
  • Select a mediator; and
  • Prepare for mediation.

Conclusion

To summarise, a consent order is a legally binding agreement made by the Family Court with consent from you and your ex-partner, usually involving Property Settlement, which is the dividing of assets. Depending on circumstances, you might want to seek a lawyer, legal advice or mediator.

While the answers to these questions are important in the future, what truly matters is having a safe, structured way forward to achieve the best outcome. Those answers can be acquired as you go along—you don’t need to have them all today.

If you are still unsure about how to approach your divorce or want that little bit more security, you can learn more using the Rise & Resolve program!

An Empowered Pathway to Clarity, Compassion and Resolution.

Rise & Resolve facilitates a safe, open environment where individuals can be assisted to peel back any layers of confusion in order to gain clarity to make empowered, grounded, and strategic decisions about their property, their future, and their life.

Resolutions come naturally when you are stabilised with safety, clarity and purpose. Rise & Resolve is here to elevate you with structure and support, such as offering comprehensive assistance, resources, and tools to complete the Application for Consent Orders—bringing you one step closer to a legally binding solution. In pursuing a resolution, you can pursue your own self-development in Rise & Resolve.

More than just a Course

The Rise & Resolve course is also a community. We have a directory or amazing mediators, accountants, valuers, advisors, all in one place to help make it easy for you to find who you need!

We hope you join us toward a better, less chaotic way to work through your separation.