What to do if you are separating…



Feeling overwhelmed?

When people separate, people often say to us “I don’t know what to do next” or “I don’t know where to start.”

One thing that most people don’t think of is their will. Many people either do not have wills or currently have a will that leaves everything to their spouse.

Separations can be stressful enough but it can be even more stressful if you have a will that does not reflect your wishes.

Depending on where you live, and which state or jurisdiction applies, you could be in a situation where your estate goes to your ex-spouse.  For example, in some jurisdictions, until you are legally divorced (which does not occur until you have been separated for a minimum of 12 months), your will remains in place and whatever you have designated to your spouse may transfer to them in the event of your passing.*

Therefore, it is important to ensure you make or update your will in the event of a separation.

If you do not have a will, it is important for you to know that your estate may go to your ex partner if you are not legally divorced. It is important if you want everything to be left to your children or a new spouse or your parents or siblings, that you take steps to ensure that your wishes are known and drawn up legally.

If you have a will saying your ex partner is the executor, it is important you change this as soon as possible to ensure someone you trust has control of your estate in the event of your passing.

It is also important to make sure that if you are leaving someone out of your will (for example, your ex partner or a certain family member or a child), that you let your lawyer know so that they can assist you.  You may need to prepare a document with your will explaining why you have thought about that particular person and why you ultimately decided not to leave anything to them in your will. If you do not do this and your will is contested, the Court will be left with a situation where they will have to either contemplate that you forgot to make a provision for them and/or that you had no basis for excluding them. The clearer your wishes are, the easier it will be to enforce your will.

This is also important to consider when thinking about guardians for your child or children. It is important for you to consider who you would want to care for your child in the event that you passed and why. The Court is not bound by your stated wish but it is of assistance if they have an explanation from you as to why you picked a particular person to be your guardian.

It is also important to consider having an enduring power of attorney. In the event that you are in hospital or overseas and unable to make decisions for yourself, it can be of vital importance to ensure that your wishes in relation to your finances, medical decisions and personal decisions are clear and/or that you nominate someone to act on your behalf to avoid a dispute in future about how to best care for you. For example, your parents, your siblings or your former partner may be in dispute and to avoid this situation, an enduring power of attorney gives you capacity to appoint an executor to make those decisions for you in the event that you become a person of impaired capacity. This designates one person or multiple people to make decisions on your behalf rather than have a myriad of people who come forward and are adamant that they know what you would have wanted in a certain situation.

Another thing to consider is your ownership of your property. Many people own their property in joint tenancy with their partner and do not know what this implies. In the event that you pass away, the other person on the joint tenancy automatically gets your share of the property. It may be worth obtaining information about changing this to tenancy in common, to ensure that your share forms part of your estate and is distributed in accordance with your wishes.

Another thing to consider is your superannuation. Many people have their partners listed as their beneficiary for their superannuation or life insurance policies and it is very important that this nomination is changed if you would like these monies to be distributed to someone else.

With regards to parenting and residence arrangements, if you are looking to ensure that you obtain the best custody orders for your situation, there are many things that you can do to assist your case.  One of our family lawyers can help you discussing your options and what is likely to work best for you.

As you can see, there are many things to consider in the event of a separation and to obtain further advice and assistance, please do not hesitate to contact one of our solicitors for more information.

If you have any questions, contact Claire Naidu & Co, Lawyers and Mediators.  Click here for our contact details.

* Nothing in this article/blog/page is legal advice and no client/lawyer relationship is established.  You should seek legal advice regarding your specific situation and circumstances and taken into account the relevant law (as amended) in your jurisdiction.  No warranty as to the currency of information is made.