Separation & Divorce
Types of Separation Agreements
A full and comprehensive separation agreement in relation to all issues in dispute is often the document that encompasses the entire agreement between the parties arising out of a breakdown of a relationship. However settlement can be achieved by way of minutes of settlement or by an interim separation agreement to deal with temporary issues pending negotiation or final adjudication. These are valid and enforceable according to the same criteria that apply to separation agreements.
Separation agreements are most commonly used where no application has been commenced. Once all issues are settled, either party can bring an application for a simple divorce.
Minutes of Settlement
Minutes of settlement are commonly used to settle issues in the context of an application. They are usually briefer than and not as comprehensive as a separation agreement. They may be used for dealing with issues that are to be incorporated into a court order, while the parties might prefer to have a separation agreement for issues that they wish to keep out of the public record. Even in minutes of settlement, it is recommended that releases be included in order to bring as much finality to the settlement as possible.
Interim Separation Agreement
Interim separation agreements are appropriate where the negotiations are potentially protracted and the parties wish to bring some certainty to their lives pending negotiations. For example:
Parties may wish to have a custody assessment, which could take months to complete. In the interim, they need to ensure that there is some schedule in place for the children, rather than an uncertain ad hocarrangement.
Financial disclosure may be extensive and time-consuming to prepare. A valuator may be necessary to determine the value of a business. In the meantime, preservation of property should be assured.
The parties may require that all disclosure remain confidential.
Where spousal support is concerned, an interim agreement is required for the payor to be able to get a tax deduction for the payments and the recipient to pay tax on the payments.
Types of Divorce Applications
In order to initiate a simple divorce, one spouse files and serves an application for divorce (Application (Divorce)(Form 8A)) on the other. This spouse becomes the applicant. If the respondent does not file an answer with the court within the allotted period of time, the court will issue a divorce order.
When an application for a simple divorce is made, the applicant is claiming a divorce only. Therefore, a simple divorce is only recommended in circumstances where there are no corollary issues to be dealt with, such as support and equalization of property. The main benefit of a simple divorce is that is it both cost effective and expeditious. However, it is not appropriate in circumstances where either spouse wishes to pursue their right to support or equalization.
In order to initiate a joint divorce, both spouses must sign and file a joint application for divorce (Application (Divorce) (Form 8A)) with the court. One of the advantages of a joint divorce is that, unlike a simple divorce, there is no requirement for one spouse to serve the application on the other. Therefore, the time between the application and the divorce order can be shorter. Further, under a joint divorce, spouses are able to agree upon and claim both support and equalization of property. While a joint divorce is clearly cost effective, it is only suitable when the spouses are able to be amicable and come to an agreement on all issues.
Divorce with Corollary Issues
In order to initiate a divorce with corollary issues, either spouse files and serves an application (Application (General) (Form 8)) on the other. A divorce with corollary issues is appropriate in all circumstance where the spouses are unable to agree upon support amounts and how to equalize their property. Once the application is filed, the divorce proceedings are under the court jurisdiction, and either spouse is able to access the courts to help settle their disagreements. The main disadvantage of a divorce with corollary issues is that it has the potential to be both costly and time consuming.
Pre-Separation Legal Advise
Often clients who are considering a separation are concerned about the state of their relationship and consult us for advice. In those confidential consultations, our role is to arm you with information and knowledge so that any decisions you make in relation to a separation are made from an informed basis.
Typically, the matters in relation to which we would advise are:
the legal implications of separation;
strategies to minimize the impact for separation on children and how to address parenting arrangements in the short term;
the range of likely outcomes in terms of:
arrangements for children;
interim and ongoing financial support both for children and spouses; and
whether assets held in companies or Trusts are part of the pool of property for division and strategies for accessing those assets;
the rights of third parties such as family or business partners involved in business or co-ownership with the parties to a marriage or relationship;
the identification and valuation of assets, particularly where there are complex financial structures; and
the protection of assets.