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James D. Ford
James D. Ford, Solicitor
Category: Australia Law
Satisfied Customers: 1601
Experience:  Consulting Principal at Nexus Law Group
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If a mans been separated from s wife a year although still

Customer Question

If a mans been separated from his wife for over a year although still living under the same roof and has been served devorce papers
Is he free to get a girlfriend? Would him seeing someone Discreetly affect the devorce such as allocation of assets/money? And custody of children?
Submitted: 1 year ago.
Category: Australia Law
Expert:  James D. Ford replied 1 year ago.

Hi, the divorce papers would state that you have been formally separated for a minimum of 12 months.. (I assume he does not challenge this state of affairs, and these are these are the facts of the matter).

It does not matter that you are both living under the same roof... you are both separated, so he is free to get a girlfriend.

However, both parties conduct is a factor taken into account by a Court (if they are left to decide on matters, where you both cannot reach an agreement re: financial/custody arrangements).

Therefore, he needs to be conscience of how he goes about the whole thing... for example, any impact this change would have on the children, if not handled discreetly, and respectfully, ***** ***** could be used against him.. in Court at a later date.

Kind regards,

James

Expert:  James D. Ford replied 1 year ago.

Pre-financial proceedings....

Each party must have regard:

 to protecting the best interests of any children;

 to ensuring that the costs of the matter are not disproportionate to the claim;

 to ensuring that the parties do not as a result of pre-action procedures engage in hostile and inflammatory conduct; and

 to each parties duty of disclosure: Sch 1, Pt 1, cl 1(6) FLR. (Parties should be aware that their duty of disclosure is a continuing obligation)

Exclusive occupation

In deciding whether to give a spouse exclusive use or occupation of the matrimonial home in

In the Marriage of Davis (1976) 11 ALR 445, the Full Court said (at 448): “The criteria for the exercise of the power under s 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.”

Kind regards,

James

Customer: replied 1 year ago.
That didn't answer anythingSo if he's desputing the money stuff can he not have a girlfriend
Customer: replied 1 year ago.
He's waiting on a deed of settlement he says
is that a thing he wants a girlfriend but is worried it will affect his assets
Expert:  James D. Ford replied 1 year ago.

Look, the answer is Yes, he can have a girlfriend.

This fact will not generally affect his legal position and assets (if a Court is left to decide). Generally parties are encouraged to move on with their lives. It can even be seen as a positive thing.

But if he is trying to reach a Binding Settlement with his ex-wife, (outside of Court) - common sense is that it might cause her to walk away from the negotiating table, or negotiate harder out of spite.

Assuming a Court is left to decide... there is a caution, that comes with the above advice.

The caution, is that if he goes about the whole thing, in the wrong way... and it creates a whole mess at home... and kids are involved... or he rubs his ex-wife's face in it... etc. then his conduct could count against him, if a Court is left to decide everything. One example, it that he could be asked to leave the marital home. If he wants to leave anyway, that might be no teal issue.

If he handles it discreetly and privately (at least until the Binding Deed of Settlement) is signed... that would be the most prudent course of action.

In the end many other factors also contribute and affect any judgement by a Court in property settlement and custody matters... so, my caution, is just a caution so that he does not take the permission to have a girlfriend, as a licence to cause problems for no reason.

Kind regards,

James

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