My husband and I have been separated since April 2017 and…

Question

Good morning, my husband and I have been separated since April 2017 and living
under 1 roof with my two boys. We are going through Mediation and we have
approximately each of us with differences of opinion despite agreeing to split
50% 50% the value of assets and share of kids. We currently share the expenses
including the mortgage repayments by putting most or all of our money in our
combined offset account. Working out the payout, he is offering me $30k less
than I have calculated as 50 50. He is taking off the figure, money I have kept
for myself in the last 2 years such as my allowance money eg money spent for my
personal things and others not so much, mainly due to health issues.

Lawyer's Assistant: I'll do all I can to help. Can you tell me more about what's
going on?

Is that fair to accept less, I know I get paid less but as an example, if I earn
2200 per fortnight, I may keep $300 to spend and the rest I put in the combined
account to go towards the bills etc. Can he use that against me? Is the same if
I out all my money to me together and then use as I need. The difference is, I
am independent, not showing all the time what I spend my money on. We are going
through mediation through Relationship Australia to come up with a financial /
consent order proposal.

Lawyer's Assistant: Have you talked to an Australian lawyer about this?

Yes, I have paid already $4,000 only to draft me a consent order, which my
husband has not responded or agreed. We have agreed with my husband to split 50
50 so not sure why I should be disadvantage financially if I am to buy property
and having to pay stamp duty. Unlike him, he wants to keep the house.

Lawyer's Assistant: What steps have you taken so far?

Not much because after that, he wanted to use mediation, and kept me waiting on
getting a lending offer from his bank.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect
you?

No, I will be going to a morning tea, can I come back with this after lunch? I
will not be able to chat in a few minutes

John Melis · Accepted Answer

Hi, I’m John

You are entitled to a greater percentage more so 60 / 40

Further to my comments above, you are entitled to a greater percentage of the
asset pool and you should not accept what your husband is offering without a
proper assessment.

Financial separation involves having all the assets total into a pool, and then
a division is decided upon who gets what percent, for example you may get 70%
and your partner 30%. In determining the percentage split all factors are taken
into account which include direct and indirect contributions.

The aim should be to settle the financial aspect amicably without processing the
matter in court whether it be the Federal Circuit Court or Family Court when
children are involved.

Separation can occur under one roof, which means you do not need to leave the
family home.

If separation cannot occur amicably it will need to proceed into the court.

If you are facing domestic violence you may want to consider have a family
violence order put into place your safety.

Financial separation involves various aspects with alteration of property
interests under section 79 of the Family Law Act 1975. Financial separation will
usually take into account four facts:

[1] The process will consider the extent of the property of the parties and its
value.

[2] The process will consider what contributions have been made by the parties,
including direct and indirect contributions of a financial character and
non-financial character, and contributions to the welfare of the family,
including contributions as homemaker and parent.

[3] The process will consider the circumstances which relate to the present and
future needs of the parties and to their means, resources and earning capacity,
actual and potential.

[4] The process will consider the effects of points 1 to 3 and resolve what
order is just and equitable in all the circumstances of the particular case.

Alteration of property interests between separating couples is an emotional and
stressful process and seeking help early is important.

The first step with financial separation is putting together a list of all the
assets, and where you are not sure what they are you will need to do a little
bit of investigative work to complete list.

Once you have the list ready, the next step is to either commence the process
with the forms from the Federal Circuit Court’s website, or with the assistance
of a lawyer.

If the financial separation process is done on an amicable basis the matter
should be resolved within 3 to 6 months.

The important aspect of the financial separation process is documenting the
division of the assets in a binding financial agreement, which can he consented
by the court.

You have a legal right to protect your interests in this situation.

Does this answer your question today ?