Here's a helpful list of things NOT to do when separating from your partner:
1. Don't change the locks on the house if your partner leaves
This a bit of a two-edged sword. It will stop your partner coming back to the house when you aren’t there and squirrelling away stuff that you may not want them to have. But while it’s not illegal to do that, it will probably upset your ex, which should be avoided, as it may make negotiating a settlement more difficult. If it’s you who are leaving the house, don’t “clean it out.” Take what you and the children reasonably need, but leave enough for your partner so that they don’t go out and buy new furniture and household goods – that could backfire on you in a property settlement.
Of course, if you are in the house, your ex has left and you fear family violence, it’s OK to change the locks for protection.
2. Do not clean out the joint bank account.
Again, take what you need but leave some for your ex. Apart from upsetting them and making future settlement discussions more difficult, the judge won’t be impressed if the case goes to court. And don’t sell shares, even if they are in your name.
3. Don't slag your ex off on social media
Apart from worsening relations between the two of you, what you say about them on social media, in texts or emails has a habit of coming back at you in an affidavit if your case goes to court. People have lost their children to their former partner because of what they have put in writing – it’s a simple way for the courts to judge a person’s character. Also be aware that the people you are telling stories about can sue you for defamation in the civil courts.
4. If you have children, don't move any distance from where you and your partner were living
Flying off with the children to Brisbane because your Mum lives there is not a good idea – unless you ex agrees, in writing. Many times we have acted for the fleeing parent or the one trying to get the children back. The court’s attitude is that they will usually make the parent who took the children interstate, to a country town or even only a few suburbs away, bring them back until the court can hear the case – a costly exercise.
5. Don't sell the house, or an investment property or increase the mortgage
You could do these things if a property is in your sole name. However, it would cause all sorts of problems as you negotiate a settlement with your former partner.
6. Do not agree on a financial settlement without consulting your Family Lawyer
While any settlement that’s not in the form of court orders or a binding financial agreement is not legally enforceable, it may not be possible to 'put the genie back in the bottle'. For example, if you and your former partner sell the house and divide up the sale proceeds and you then decide that you want a better settlement, that could be too late, especially if your ex has spent the money he got on another property.
7. Don't disappear
Not a good idea, especially if you have taken the children with you. Although we are a big country, it would be relatively easy for your ex to find you. The Family Courts have a process where, if you are receiving Centrelink benefits, they can direct that body to tell the court where the children are living. The exception is where there has been family violence and you and the children are staying in a refuge.
8. Don't change the children’s schools without the other parent’s consent
That could result in your former partner applying to the court for an order to return them to their previous schools, causing disruption and confusion for the children, as well as the likelihood that the court would order that you pay your ex’s legal costs.
9. Do not buy another property (or a Harley-Davidson, or a Porsche)
Yes, it happens. That just complicates the process of sorting out a property settlement with the other side. Most people don’t know that the law says that property (including houses, motor vehicles and shares) that are acquired after separation can still be taken into account in your property settlement.
10. If you have a business, either in your name or with your partner, don't make changes to reduce its value
Don't selling the business or run it down so it’s worth less than when you separated. A forensic accountant employed by your ex is allowed to examine the business and the court may give him or her a larger property settlement if they find you have acted to reduce the value of the business.
We're here to help
If you are in the process of negotiating separation from your partner, our family law team is here to help. Our experienced family lawyers will help you negotiate a fair outcome and protect your best interests and that of your children.
At Tonkin Legal, we firmly believe that the best way to reach agreement with your ex-partner is through negotiation wherever possible. Over the last 50 years, we have successfully guided and supported hundreds of people through this (sometimes very painful) process and out the other side.