One of the questions many people ask us when considering separation is "how can I leave my husband when I have no money?". To best answer this question, it is helpful to consider a hypothetical situation, where Susan wants to leave her husband, Tom.
Susan wants to leave her husband
Susan is 48. She has been married to Tom, 51, for 15 years. They have two children, Jason, who is 14 and Sharon, 12. They live in their jointly owned home in the north eastern suburbs of Melbourne. There is a mortgage on the house.
Tom works for a construction company and makes $85,000 a year before tax. The Coronavirus has resulted in his employer reducing his hours of work and his income has dropped to $70,000. Susan was working part time in a florist shop which has closed because of the pandemic. She now has no income except for Centrelink payments for the children.
There has been a history of domestic violence in the marriage, with Tom assaulting Susan, often in front of the children. This has reached the stage where she has decided that, for her safety and that of the children, the marriage has to end.
What are Susan’s options?
The first step would be to go to the local Magistrates Court and ask for an Intervention Order against Tom, to prohibit him from committing acts of domestic violence against her or the children. If she feels that would not be enough, she can ask that Tom be ordered to leave the house and live elsewhere. She is more likely to get that Order if she and the children have nowhere else to live.
Let’s assume that Tom leaves the house, with or without a Court Order. So how is Susan going to support the children, and herself?
- Susan has no savings of her own. If there is a joint bank account, she can withdraw whatever she needs from that – she does not have to leave half for Tom.
- She should immediately apply to Centrelink for a Single Parent Payment.
- She should immediately apply to the Child Support Agency for an assessment of the child support that Tom is to pay her. If the children attend private schools or have special needs, Tom can be required to contribute to those.
- If Susan got an Order that Tom leaves the house and, if he refuses to pay the mortgage, she can apply to the mortgagee (i.e the home loan bank) for a moratorium on repayments for, say, six months, while she and Tom try to reach a financial settlement. If the lender refuses, she can pay her half of the interest, not the principal, until there is a settlement. If there is drawdown facility, she can use that.
- If she has superannuation she can, until the end of 2020, withdraw up to $10,000 from her fund.
- Susan can make an application to the Federal Circuit Court, under the Family Law Act, for Urgent Interim Spousal Maintenance from Tom. Such an Order can be made if Tom has money left over after paying his reasonable expenses and child support, and can include weekly or monthly cash payments from Tom and/or that he pay the mortgage.
If Susan left the house with the children, the advice is much the same, except that Tom would be expected to make the mortgage payments on the house.
If the roles, including incomes, were reversed, and Tom had the children, the above would still apply, except that Susan would have the main financial responsibility.
Plan before you act!
It can be very helpful to develop a plan that protects your best interests and those of your children before you separate from your partner. Our pre-separation checklist covers the things you need to carefully consider when leaving your partner.
Remember, you don't have to do this by yourself. Our family law team is here to help! We offer fixed fee pre-separation advice. For just $450 (inclusive of GST), we review your current situation and work with you to develop a plan to address each item.
