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Do I need a lawyer if I am separating from my partner?

By Surendra Bennett - 15 Jan 2018

Not every separation requires a lawyer, especially if you and your partner are amicable and can resolve things between yourselves. However, if there are disagreements, a lawyer can help with practical solutions. We can tell you the steps and timeframes required during the process and let you know likely outcomes based on previous case law.

Child care arrangements (child custody)

A parenting agreement is a good idea to outline care arrangements for your children. Although this is not enforceable in the way a Court order is, most people find it useful as a way of recording agreements reached and expectations, especially in the event there are disagreements later on. It can also be a valuable reference point and records the parties' intentions if court proceedings later become necessary. It is often prudent to obtain input from a lawyer when preparing a parenting agreement in order to ensure all the necessary aspects are covered.

If parents are unable to agree as to care arrangements, there are two steps which need to be completed before court proceedings can be commenced (unless there are urgency or safety issues in which case court proceedings can be commenced without taking these steps).

The first step is that each parent must attend a Parenting Through Separation course. The second step is to engage in a Family Dispute Resolution process (mediation) to try and resolve matters without requiring court proceedings. Once these two requirements are met and, if agreement has not been reached by that stage, an application for a Parenting Order can then be made in the Family Court to determine care arrangements. A lawyer can assist with this.

If one parent is a risk to a child or children due to issues such as to drugs, alcohol or domestic violence, you may need to apply to the Family Court on an urgent basis rather than relying on a parenting agreement.

Relationship (Matrimonial) Property

If you and your partner are able to agree on how the relationship property is to be divided after separation, we recommend the agreed arrangement is recorded in a Separation Agreement. The benefit of recording the agreement in a formal document is it becomes a binding agreement which then prevents either party later changing their mind and seeking to change the terms.

In order for a separation agreement to be valid and enforceable, each party needs to have independent legal advice and the agreement needs to be witnessed and certified by each party's lawyer. This process ensures you are aware of your legal entitlement and whether you are receiving your full entitlement to relationship property under the terms of the agreement. What is fair under the law will be dependent on the circumstances of your relationship and that is why you need to ensure that you obtain independent legal advice from a family lawyer.

We have a wide breadth of experience from simple separation agreements to protection orders and child custody. Every case is different and our team will be right beside you helping you navigate the law. Our goal is to get the best outcome for both you and your family.

If you need any advice relating to the divorce or separation or would like to understand more about your legal entitlements when separating, please contact Surendra Bennett to discuss your matter further.


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