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Separating/Divorce
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If you are married and you have doubts about your
relationship – then you will need to consider whether the separation will be permanent, or whether there is a chance of reconciliation. There is no need to hurry the decision about getting your marriage legally terminated. In any event, the law requires you to live separately for a minimum of 12 months before you can apply for a divorce.
Whilst you are separated, the status quo remains on your legal affairs – for instance your Will made while you were married will still take effect if you were to die (for instance, it may leave everything to your spouse, and that would take effect even though you were separated) and if you became incapacitated, your existing Enduring Power of Attorney may still nominate your spouse as the person to look after your affairs. You may not be happy for this to remain the same, so you need to consider changing these documents straightaway. If you reconcile, you can always change them again! These documents can change as many times as you like, depending on your new circumstances.
Most people take this opportunity to revise their Will. You must make adequate provision for your dependants in your Will, because if you don’t, it is open to be contested if you should pass away. A Will does more than just provide financially for your loved ones on your death. It also allows you to have a say in who should be the guardians of your children, in the event both you and your spouse are not alive.
What do I need?
You need:
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A
Divorce (if you are married, do not wish to remain married, and have lived apart for 12 months)
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A
Will
or if you don't already have one. If you have one,
you should get it reviewed to see if it needs updating.
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An
Enduring
Power of Attorney
What happens if I
don’t do anything?
Let’s look at a few different scenarios where you are separated but not divorced:
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You cannot get remarried
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If you became incapacitated and you had not changed your Enduring Power of Attorney, then if you had selected your spouse as the donee, he/she would be in charge of looking after your affairs,
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If you were to pass away, and had not changed your Will, then your spouse would still take his/her gift under that Will (and may be the Executor, if you had selected him/her there as well)
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If you have not arranged for a property settlement then you and your spouse’s matrimonial assets will still be in ‘limbo’ – for instance, if most assets are jointly owned, it may be difficult to sell one of the assets or buy another in your own
name.
Tips on what to do
Get a new Will and Enduring Power of Attorney done if you think there is a strong likelihood that you will not reconcile, and if you are not happy with the arrangements under your existing documents.
Consider seriously whether it is time to formalize the separation by way of divorce and property settlement. If you have any doubts about this process, you may like to consult our Lawyer Affiliate who specializes in Family Law matters. You can have a consultation with them for only
$25.00 online. Alternatively you can ring them to make an appointment.
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4 February, 2012
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