Latest / Reflect Reclaim & Liberate - with Sallyanne Hartnell / DIVORCE FAQs - Part 1

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DIVORCE FAQs - Part 1 · Reflect Reclaim & Liberate - with Sallyanne Hartnell

• 0:00
  SPEAKER_00: Welcome to Reflect, Reclaim and Liberate, a podcast covering all things relationships, separation, and divorce.
• 0:09
  SPEAKER_00: How to create healthy, happy, fulfilling relationships without sacrificing any part of yourself.
• 0:15
  SPEAKER_00: Supporting anyone feeling challenged in their relationship or marriage.
• 0:18
  SPEAKER_00: These are confidential conversations for you if you're navigating separation, divorce, or reorganising life afterwards.
• 0:26
  SPEAKER_00: Decide whether to stay or leave a relationship or marriage, divorce with less drama, and consciously choose what's next for you.
• 0:36
  SPEAKER_00: I acknowledge the traditional owners of the land on which this podcast is recorded, the Warren Tree people of the Kulin Nation, and pay my respects to their elders, past, present, and emerging.
• 0:45
  SPEAKER_00: I acknowledge them as the original storytellers of this land.
• 0:52
  SPEAKER_00: Welcome back to another episode of Reflect, Reclaim and Liberate.
• 0:57
  SPEAKER_00: Today I'm going to address some of the most frequently asked questions about separation and divorce.
• 1:05
  SPEAKER_00: It's going to be the first of a two-part series on FAQs about divorce.
• 1:12
  SPEAKER_00: And at the outset, I just want to say this is general information only, so please seek specialist or formal legal and financial advice from a specialist family lawyer, financial advisor, or Services Australia to clarify your unique circumstances and your unique position.
• 1:31
  SPEAKER_00: Also note things change.
• 1:33
  SPEAKER_00: So this is being recorded in January of 2022.
• 1:38
  SPEAKER_00: If you're listening to this at some future point, things may have changed.
• 1:42
  SPEAKER_00: Laws may have changed, circumstances may have changed.
• 1:45
  SPEAKER_00: So remember, this is general advice only, and do seek specialist advice to suit your unique circumstances.
• 1:54
  SPEAKER_00: First off, let's start with not a question I'm asked, but something I find I need to clarify quite often, and that is what is a divorce?
• 2:05
  SPEAKER_00: Now, divorce is simple, really.
• 2:08
  SPEAKER_00: I really mean that.
• 2:09
  SPEAKER_00: Divorce is quite simply the legal ending of a marriage.
• 2:13
  SPEAKER_00: It's paperwork submitted to the Federal Circuit and Family Court of Australia, which from now on I'm going to refer to as the court or court.
• 2:22
  SPEAKER_00: It's paperwork that's processed and your divorce is granted.
• 2:26
  SPEAKER_00: Once that divorce is granted, it will become final one month and one day later, unless a special order is made by the court to shorten that time.
• 2:35
  SPEAKER_00: And once your divorce is finalized and granted, you can then download a copy of your divorce order from the Commonwealth Court's portal.
• 2:44
  SPEAKER_00: Back in the day, you used to get posted a copy.
• 2:47
  SPEAKER_00: Nowadays you download it yourself from the Commonwealth Courtal.
• 2:51
  SPEAKER_00: So it's really important to clarify that the granting of a divorce is separate to issues of financial support, property division, or arrangements for children and child caring.
• 3:04
  SPEAKER_00: It is simply a formal recognition, a legal recognition that the marriage has ended.
• 3:09
  SPEAKER_00: So when we talk about messy, protracted or long drawn-out divorces, we're actually not talking about the divorce.
• 3:17
  SPEAKER_00: We're talking about the negotiations around that other stuff, the money, the property, childcare arrangements leading up to the actual divorce itself.
• 3:27
  SPEAKER_00: So bear in mind that when we talk messy divorce or difficult or challenging divorce, we're actually talking negotiations, discussions, coming to agreement.
• 3:38
  SPEAKER_00: The divorce is the final piece in the puzzle.
• 3:41
  SPEAKER_00: It is submitting paperwork to the court and having your divorce granted and your marriage legally ending.
• 3:48
  SPEAKER_00: So these next questions are the ones that I'm most often asked.
• 3:53
  SPEAKER_00: We've decided to divorce.
• 3:55
  SPEAKER_00: What are our options?
• 3:57
  SPEAKER_00: Now, as I said, divorce itself is easy.
• 4:00
  SPEAKER_00: Fill out some forms, submit them to the court, voila, granted.
• 4:03
  SPEAKER_00: Alright, so for most of us, when we're talking about the divorce, what we're really talking about is the negotiations around money, property, childcare arrangements that occurs as part of the process.
• 4:14
  SPEAKER_00: So to do that, your options are DIY, you work things out together, kitchen table discussion type thing.
• 4:23
  SPEAKER_00: And this is probably best in situations where there are no major assets or no children involved.
• 4:29
  SPEAKER_00: There are even online options where consent orders are drafted and submitted to court and force applied for, all done via an online portal.
• 4:38
  SPEAKER_00: That's your first option.
• 4:40
  SPEAKER_00: The next option is, of course, to work with coach and discuss your options, but mostly when I'm working with clients, I work with one client, not the couple.
• 4:53
  SPEAKER_00: So you might each work with a coach or you may seek other professionals, and the next step would probably be mediation.
• 5:02
  SPEAKER_00: Now, mediation or family dispute resolution practitioner, a mediator, I'm sorry, or a family dispute resolution practitioner is particularly trained, specially trained to support a conversation between the two of you to bring you to agreement, to mediate the conversation and bring you to agreement.
• 5:21
  SPEAKER_00: A mediator is skilled at bringing the both of you from you know different ends of a story to a meeting point in the middle.
• 5:31
  SPEAKER_00: It's best, in my opinion, if you have legal advice, and again, in my opinion, all right, if you have legal advice as well, independent legal advice for you, for each of you, as well as mediation.
• 5:43
  SPEAKER_00: So you know what to expect, you know what your rights and your options are, maybe even in this space, some coaching to work out your wants, your needs, where you're willing to compromise and what's non-negotiable.
• 5:56
  SPEAKER_00: So that would be your next option.
• 5:58
  SPEAKER_00: Following on from that, if you if you as a separating couple, divorcing couple, you need a little bit more support, is collaborative law, collaborative family law.
• 6:07
  SPEAKER_00: This is a team-based approach where both of you have legal representation and both lawyers sign an agreement stating their commitment to settling the case without ever going to court.
• 6:20
  SPEAKER_00: Both lawyers sign this agreement, and if the collaborative process does break down, then those lawyers release, uh you release the lawyers, they cannot act for you in any form that involves court or litigation.
• 6:35
  SPEAKER_00: As I said, it's a team model, so it will involve an independent financial advisor, it might involve a psychologist, a coach, a counsellor.
• 6:44
  SPEAKER_00: It's an holistic approach where the entire situation is looked at, not just the purely legal issues.
• 6:56
  SPEAKER_00: The next step, if that's not an option, if collaborative law is not an option for you, or collaborative process is not an option for you, is lawyer-assisted settlement, where your lawyer works with your spouse's lawyer and the lawyers work it out together under instruction from each of you.
• 7:13
  SPEAKER_00: Now, if that doesn't resolve your matter, if you can't come to agreement via lawyer-assisted settlement or a lawyer-assisted process, the next step is litigation, court-based.
• 7:24
  SPEAKER_00: This is the last option if you simply cannot agree, or there are real barriers to you being able to safely engage with your spouse or your soon-to-be ex.
• 7:35
  SPEAKER_00: In Australia, there are steps you need to go through before your matter will actually get to court, but I'll address those in another question further into the podcast, further into this episode.
• 7:48
  SPEAKER_00: The next question I'm often asked is: can we get divorced if we're still living in the same house?
• 7:54
  SPEAKER_00: We're still living together, but we've decided to separate.
• 7:57
  SPEAKER_00: Can we start the divorce?
• 8:00
  SPEAKER_00: If you've agreed to separate, if you've agreed on a separation date, this is mostly a non-issue.
• 8:06
  SPEAKER_00: You agree on your date of separation, and that's sort of simply that.
• 8:10
  SPEAKER_00: Things can get started, you can get things started in the background, but you you'll likely need to submit information to the court along with your divorce application.
• 8:19
  SPEAKER_00: However, if you're still living in the house under the same roof and you're not in agreement, or you're in a higher conflict situation, you might need to prove that while living in the same house, you are officially separated.
• 8:35
  SPEAKER_00: So, for example, in Australia, you need to be separated for officially separated for 12 months before you can apply for a divorce.
• 8:43
  SPEAKER_00: So if you and your spouse lived in the same home during part or all of that required 12-month separation period, you might need to provide extra information to the court before you can apply for a divorce.
• 8:56
  SPEAKER_00: You might need to submit an affidavit explained to the court explaining the situation, and your lawyer or legal representative legal representative will support you through that.
• 9:08
  SPEAKER_00: You know, it can be things like changing, change in sleeping arrangements, sleeping in separate rooms, um, reduction in family or shared activities, doing less within the household for one another, splitting out your finances, separate bank accounts, and any other any other evidence that the marriage has in fact broken down.
• 9:32
  SPEAKER_00: For example, you've told family and friends, you've told your workplace, etc.
• 9:37
  SPEAKER_00: So you can actually get divorced if you are still living in the same house under the same roof, and it is a trend that we're seeing a little bit more because of rising um rising cost of living and rising cost of housing here in Australia that couples are separating and and in fact going right through to divorce but still maintaining maintaining separate lives but under the same roof.
• 10:07
  SPEAKER_00: Next question.
• 10:09
  SPEAKER_00: I identify as LGBTQI, how does that impact my divorce?
• 10:14
  SPEAKER_00: Now, while the law applies equally, regardless of your gender identity or sexuality, there are obviously unique barriers faced by members of the LGBTQI community when it comes to family law.
• 10:28
  SPEAKER_00: If you're married, whether that be same-sex, heterosexual, cisgender, or as an LGBTQI person, the family law applies to you equally the same, as does the law on de facto relationships if you are de facto but not married.
• 10:43
  SPEAKER_00: There are specialized family lawyers who can support you through your separation or divorce, and I would suggest you seek them out.
• 10:50
  SPEAKER_00: I will drop a couple of um options in the show notes, and of course, coaching can be deeply supportive and reflect is an inclusive space supporting people in all types of relationships.
• 11:05
  SPEAKER_00: So legally, technically, whether you identify, however, you identify, the family law applies to you exactly the same.
• 11:15
  SPEAKER_00: The next frequently asked question I want to address is how much will it cost?
• 11:20
  SPEAKER_00: And my answer to that is how long is a piece of string?
• 11:23
  SPEAKER_00: Because every family, every couple, every divorce is different.
• 11:27
  SPEAKER_00: Your circumstances are unique.
• 11:30
  SPEAKER_00: It's also going to depend on the pathway you choose or the pathway that ends up kind of being chosen for you.
• 11:37
  SPEAKER_00: You know, if you can DIY, if you can mediate, it's obviously going to cost you a whole lot less.
• 11:44
  SPEAKER_00: If you can use, or if you can use collaborative family law process, it's going to cost you a whole lot less than if you end up in court in litigation.
• 11:54
  SPEAKER_00: It's also dependent on the way your legal team bills.
• 11:59
  SPEAKER_00: Many still charge an hourly rate, which means that all the work performed on a file, whether that be responding to emails, to yours, to those from the other lawyer, um, taking and making phone calls, research for disclosure, and I'll explain what disclosure is a little further into this episode.
• 12:20
  SPEAKER_00: Uh responding to your spouse's lawyer, that is all charged, tick, tick, tick, tick in increments, and you're sent a monthly bill.
• 12:30
  SPEAKER_00: Others offer fixed fee service.
• 12:34
  SPEAKER_00: So there's a real clear explanation up front of what you're going of what you're going to be charged.
• 12:39
  SPEAKER_00: So it really depends on the complexity of your case and how much time your lawyer is going to need to spend.
• 12:46
  SPEAKER_00: Your legal costs will obviously depend on how long things take to be resolved and how much time your lawyer spends assisting you.
• 12:55
  SPEAKER_00: So it's going to be influenced by lots of factors.
• 12:58
  SPEAKER_00: The complexity of your matter, as I said, your spouse, your soon-to-be-ex's willingness to engage in the process, your willingness to engage in the process, and whether your matter, as I said, is resolved by a negotiation between the two of you, through mediation, through collaborative family law, or through court proceedings.
• 13:17
  SPEAKER_00: If things are resolved quickly, you can come to agreement quickly, your costs could be really relatively low.
• 13:25
  SPEAKER_00: Being organized outside of legal stuff, outside of legal meetings, being supported with a coach or a counselor or both can dramatically reduce your costs.
• 13:36
  SPEAKER_00: Use your lawyer for the legal stuff and lean on other professionals for the practical, mental, psychological, emotional support.
• 13:44
  SPEAKER_00: Your lawyer is a specialist in law.
• 13:47
  SPEAKER_00: Lean on them for the legal stuff.
• 13:49
  SPEAKER_00: Don't use them as a counsellor, it gets expensive.
• 13:54
  SPEAKER_00: Application for divorce is currently$990 Australian dollars with the option of a reduction, a reduced fee, I should say, in certain circumstances of$330.
• 14:06
  SPEAKER_00: An application for consent orders is$180.
• 14:09
  SPEAKER_00: That's current.
• 14:10
  SPEAKER_00: However, an article in Money Magazine in 2017, so that's what six, five, six years ago, estimates that the average cost of a divorce is but in Australia, it was then between 50 and 100,000 and can take up to three years if going through the court.
• 14:31
  SPEAKER_00: Now, this time span may have changed with the merger of the two courts in 2021, but going through court is still a long and costly process.
• 14:41
  SPEAKER_00: So if you can avoid it, it is strongly advisable.
• 14:46
  SPEAKER_00: If you divorce through a more amicable collaborative pathway, it can dramatically reduce the costs and it can cost as little as four and a half, five thousand dollars per person.
• 14:59
  SPEAKER_00: Now, how long how much does it cost?
• 15:02
  SPEAKER_00: It all depends.
• 15:03
  SPEAKER_00: And as I said at the beginning, how long is a piece of string?
• 15:08
  SPEAKER_00: Which brings me to the next frequently asked question, which is how long is this gonna take?
• 15:15
  SPEAKER_00: Much like how much is it gonna cost, this is mostly dependent on you and your spouse and your capacity to negotiate, either independently or supported with coaches, mediators, lawyers, etc.
• 15:29
  SPEAKER_00: Because we're not talking about divorce generally, we're talking about the negotiations and settlement.
• 15:36
  SPEAKER_00: Financial can a financial settlement can be finalized in a matter of weeks if you're both able to come to the party, come to the table, I should say, and come to agreement quickly.
• 15:49
  SPEAKER_00: But if there are disagreements and challenges around that negotiation process, the that process may take a couple of months meet through mediation, and if the matter goes to court, as I referenced in that money magazine article from 2017, financial settlement in court, going through court, childcare arrangements, settlement through court can take up to three years or more.
• 16:13
  SPEAKER_00: Now, once the settlement is agreed in Australia, um, and again, this is current at time of recording, this might change in the future.
• 16:23
  SPEAKER_00: In Australia, a divorce takes about four months before it's officially granted by the court.
• 16:28
  SPEAKER_00: This is the average kind of time taken from the date you first file your application in court until the date when a divorce order is issued by the court.
• 16:39
  SPEAKER_00: Then that's sent to you, as I said, at the very beginning of this episode, or then you're able to download you and your ex-spouse are both able to download a copy of the divorce orders.
• 16:50
  SPEAKER_00: Next most frequently asked question: What is property settlement and what is the asset pool?
• 16:57
  SPEAKER_00: Now, again, this is not something that clients come to me and and actually state out loud what is property settlement, but family lawyers will talk about it, they'll talk about property settlement and they'll talk about the asset pool, so it gets really confusing.
• 17:12
  SPEAKER_00: Um, and so I thought I would address it in this way.
• 17:16
  SPEAKER_00: So all the property owned by you and your partner, either in your joint names or in your individual names, is known as the asset pool, the matrimonial asset pool.
• 17:29
  SPEAKER_00: And in family law or law, the term property doesn't just include real estate.
• 17:36
  SPEAKER_00: When we talk property in family law, we're including yes, the family home in any other real estate, we're talking cashing bank accounts, cars, or any other vehicles that you own, investments, superannuation entitlements, it can include household items, uh, jewelry, tools.
• 17:56
  SPEAKER_00: Property may also include the value of a business or a family trust.
• 18:01
  SPEAKER_00: So the term property in family law goes beyond simply real estate.
• 18:07
  SPEAKER_00: It is everything that you own.
• 18:09
  SPEAKER_00: And the term property settlement describes the division of that property and that asset pool between a husband and wife or between de facto partners when they separate.
• 18:20
  SPEAKER_00: Now, everything is included, not just what you own, but also liabilities, what you owe, and that can have implications if one of you has racked up a debt and you're married or you're in de facto relationship, that can affect the separation or sorry, I'm sorry, the division of the asset pool, because it's all included what you owe as well as what you own.
• 18:49
  SPEAKER_00: Following on from what is property settlement, who gets the house, or what I more frequently hear is I want to keep the house.
• 18:59
  SPEAKER_00: Am I going to be able to keep the house?
• 19:02
  SPEAKER_00: Now, in family law, there's no strict formula for a divorce settlement in Australia that is, and contrary to popular perception, there's no starting at 50-50 or there's no 50-50 split rule.
• 19:16
  SPEAKER_00: Each couple, each separating couple, each family's circumstances are unique.
• 19:21
  SPEAKER_00: So who gets what or who gets the house is different in every separation, every divorce.
• 19:27
  SPEAKER_00: And while many have this belief that the asset split should be a simple 50-50 split, this is not necessarily the case because a number of factors are taken into consideration, including what assets and liabilities each person had at the beginning of the relationship, and as part of that, the length of relationship comes into the equation.
• 19:52
  SPEAKER_00: Also, each person's financial and non-financial homemaker caring and parenting contributions are taken into consideration, as are future needs of each party, each person, including caring for children and capacity to earn in the future.
• 20:10
  SPEAKER_00: So 50-50 is not the standard and it's not the starting place, and is not necessarily fair.
• 20:18
  SPEAKER_00: Fairness is multifactorial.
• 20:21
  SPEAKER_00: And as I said, a lot of other things are taken into consideration when legally determining the asset the percentage split.
• 20:31
  SPEAKER_00: Now, if you're agreeing to um if you do if you're doing it DIY or via mediation, um, again, I advise you to get some legal advice so you know what your what you're agreeing to is actually fair because all those other factors need to be considered, not just like, yep, okay, we're splitting everything 50-50 done.
• 20:52
  SPEAKER_00: So when it comes to who gets the house, the house is one part of the property pool, the rest being all of your assets and all of your liabilities, everything you owe, everything you own.
• 21:02
  SPEAKER_00: It's all included, as I said, into the asset pool and split according to how you agree or how the court decides.
• 21:10
  SPEAKER_00: So, put really simply, if for example, your total asset pool is, I'm picking easy numbers so that I don't have to do hard maths on the fly.
• 21:18
  SPEAKER_00: Let's say your total asset pool is 2 million bucks and the decision is a 55-45 split with 55% going to you, and the house is worth more than 1.1, which is 55%, you won't necessarily be able to afford to keep the house, mortgages and finances notwithstanding.
• 21:37
  SPEAKER_00: However, let's say sticking with a$2 million asset pool just because the numbers are easy, a 50 45 split is agreed, and the family home is worth$750,000.
• 21:48
  SPEAKER_00: It is feasible that you may keep the house.
• 21:51
  SPEAKER_00: There are lots and lots of factors to consider when deciding whether it's in your best financial interest to keep the house.
• 21:57
  SPEAKER_00: And I always say, you might have heard me.
• 22:00
  SPEAKER_00: Say this before, you can't eat a house.
• 22:02
  SPEAKER_00: There is no point fighting to hold onto a property that you can't afford to maintain, or that leaves you with no other financial assets, financial assets.
• 22:13
  SPEAKER_00: You can't eat a house.
• 22:15
  SPEAKER_00: So again, here I strongly, strongly suggest you seek both legal and financial advice.
• 22:24
  SPEAKER_00: Next frequently asked question what happens to the dog or the pets?
• 22:30
  SPEAKER_00: What happens to the dog?
• 22:32
  SPEAKER_00: Who gets the dog?
• 22:34
  SPEAKER_00: In family law, the arrangements for pets are not considered the same way as they are for children, even though we love our pets, even though pets are often a really beloved family member.
• 22:46
  SPEAKER_00: Pets are classified as property under the family law and are split in inverticommas accordingly.
• 22:54
  SPEAKER_00: So if you're leaving a situation, if you're leaving the family home and you want to keep the dog or the cat or whatever pet you have, it's probably advisable to take the animal with you.
• 23:08
  SPEAKER_00: If you can't agree, and this guy has gone to court a number of times, um if you can't agree, the court will decide, and the and the animal is treated as property, not like a family member.
• 23:22
  SPEAKER_00: So it really is in your and the and the pet's best interest to be able to have a discussion with your ex soon to the ex and make a decision about who gets the dog or how the dog's going to move back and forth between two homes.
• 23:38
  SPEAKER_00: Next frequently asked question is what the hell is discovery and what is disclosure?
• 23:47
  SPEAKER_00: It comes up fairly early in conversations with family lawyers because during any family law matter, any divorce, any separation, each side, each person will be asked for um documents and entitled to receive them from the other side.
• 24:06
  SPEAKER_00: Documents and information from your soon-to-be ex-partner.
• 24:11
  SPEAKER_00: This is called discovery, and the information that is provided is called disclosure.
• 24:16
  SPEAKER_00: So I'm just kind of clearing out some terms or explaining some terms so that when these are thrown around in your family law or in your discussions with family lawyers, you know what they're talking about.
• 24:29
  SPEAKER_00: Now, if you've chosen a DIY kind of pathway through your divorce, you need to be absolutely certain, absolutely certain you have full visibility on all of the financials of your relationship you're soon to be ex, and fully trust that they're honest and open with you about their finances.
• 24:49
  SPEAKER_00: If that's not the case, it's very, very difficult to do a DIY divorce.
• 24:54
  SPEAKER_00: So, what do you need to disclose and why?
• 24:58
  SPEAKER_00: Well, the why is pretty clear.
• 25:00
  SPEAKER_00: Disclosure enables everybody to everybody who's involved, you, your ex-partner, and your lawyers, if you have lawyers, to see all the relevant financial documents and any other relevant information to be able to review, analyze it, and get a really clear picture of what the asset pool actually is, including contributions to the relationship, childcare contributions and and so on, as we discussed before.
• 25:23
  SPEAKER_00: So it's not just the numbers, it's also the contribution.
• 25:27
  SPEAKER_00: So it's all of the documents outlining assets and liabilities, debts, including superannuation, income from both employment from a business or a company or other sources, investments, family trusts, and also as I said, those contributions made to the relationship and made to the asset pool.
• 25:45
  SPEAKER_00: So it might include pay slips, bank statements, tax returns, any other documents to evidence, you know, um assets bought or sold, um, inheritances, gifts, redundancy, payouts, and it can also include future assets that you might or that might be likely to come your way, you know, a bonus that's coming in the next six months, or share options or distributions, trusts, inheritances, that sort of stuff.
• 26:14
  SPEAKER_00: Also, any documents to verify both of your financial positions when you began living together, especially if there was a discrepancy, especially say one of you owned property or had a lot of assets while the other didn't.
• 26:28
  SPEAKER_00: The longer the relationship, the longer you've been together, however, the less impact this has.
• 26:34
  SPEAKER_00: If you've been together for 20-30 years, this consideration is less impactful.
• 26:42
  SPEAKER_00: Disclosure helps you and your ex or your spouse to feel confident that you have the full financial picture and that you can work out a settlement division that is fair and reasonable and that is going to be upheld by a court should it ever go to court.
• 26:59
  SPEAKER_00: You're both required by law to fully openly disclose, be open and willing to give information, not hide or siphon off assets or refuse to share information that's relevant.
• 27:11
  SPEAKER_00: You are required to do that by law.
• 27:13
  SPEAKER_00: But what if one of you doesn't disclose fully?
• 27:16
  SPEAKER_00: What if one of you does not come to that, um, come to that table willingly?
• 27:21
  SPEAKER_00: If you or your ex refuses to disclose, well, if your ex refuses to disclose, you really have little option but to start down the legal route, to start court proceedings.
• 27:31
  SPEAKER_00: And sometimes that kickstart is enough to get them on board and get the process started for them to come to the to the table and fully disclose.
• 27:42
  SPEAKER_00: If one of you continues to refuse and it goes to court and it goes right the way through court, the court can require the one who refuses to pay court costs or maybe to receive a smaller percentage of the asset pool, but you don't want to get to that point.
• 27:59
  SPEAKER_00: You don't want to get to that point.
• 28:01
  SPEAKER_00: Now, if the non-disclosure only becomes apparent or it's only revealed way down the track, like after the court has, you know, it's gone through court and the court has made a final property settlement, or even if it hasn't gone through court, actually, the court may set aside um the orders, the settlement order, as I said, and that can happen even if it's years down the track.
• 28:24
  SPEAKER_00: So you you don't want that.
• 28:26
  SPEAKER_00: Full open disclosure in a timely manner supports you both in resolving things amicably, quickly, and we know quickly means less less costly.
• 28:39
  SPEAKER_00: Next FAQ consent orders.
• 28:42
  SPEAKER_00: What are consent orders?
• 28:45
  SPEAKER_00: Um, I'm going to touch more on consent orders in part two of this podcast, but for now, I'm just gonna just define what they are, I'm just gonna outline what they are.
• 28:56
  SPEAKER_00: So a consent order is an agreement between the two of you, between ex-partners, that is approved by the court and then becomes a court order.
• 29:06
  SPEAKER_00: It can cover how the asset pool is divided, it can cover ongoing financial matters, maintenance, I should say, and it can also cover parenting arrangements.
• 29:16
  SPEAKER_00: So consent orders for property settlement, which we've just been talking about really, um, consent orders are legally binding.
• 29:24
  SPEAKER_00: They are orders which formalise and finalise your property, your financial agreement with a former partner or spouse.
• 29:31
  SPEAKER_00: As I said, I'm gonna touch base, I'm gonna touch on consent orders in more depth in the second part of this podcast episode.
• 29:41
  SPEAKER_00: Next FAQ.
• 29:43
  SPEAKER_00: Do I have to get a divorce before we divide our assets?
• 29:47
  SPEAKER_00: You don't have to be legally divorced to settle your property or financial matters.
• 29:53
  SPEAKER_00: In fact, it is usually better to reach a property settlement, particularly if there's a disagreement.
• 30:00
  SPEAKER_00: It's usually better to do that before you legally apply to get divorced.
• 30:05
  SPEAKER_00: Because once you are divorced, timelines kick in, and that's one year after divorce for married couples or two years from separation for de facto couples.
• 30:16
  SPEAKER_00: You've only got that period of time to finalise your property settlement and lodge it with the court.
• 30:24
  SPEAKER_00: So if you can get your property settlement agreement done before you lodge before you apply for divorce, you don't have to deal with the timelines.
• 30:33
  SPEAKER_00: You can take all the time that you need and require to get full disclosure and be really confident that you've got all the information and then make it make a decision, come to an agreement, and once that's once that's um submitted to the court consent orders, then you can apply for your divorce.
• 30:52
  SPEAKER_00: Final step.
• 30:53
  SPEAKER_00: The flip of that, do I need court orders to finalise property settlement?
• 30:59
  SPEAKER_00: Um, it's not really the flip, it's just another aspect of finalizing your property settlement.
• 31:04
  SPEAKER_00: You don't need to submit, you're not legally required, let's put it that way, to submit your property settlement or to the court.
• 31:14
  SPEAKER_00: However, it is really, really, really, should I say that again, it's really preferable that you do.
• 31:22
  SPEAKER_00: You can absolutely DIY agree to your property settlement and and simply verbally or agree in writing without submitting it to the court.
• 31:35
  SPEAKER_00: However, if one of you at some future point, for example, inherits a large chunk of money or your asset pool increases, your asset base increases significantly in another way, the other party can.
• 31:50
  SPEAKER_00: Now I'm not saying it will happen, but they can attempt to claim some of that if your divorce isn't finalised and your orders aren't submitted to the court, or if your orders, your financial property settlement orders aren't submitted to the court.
• 32:02
  SPEAKER_00: Now, family court orders can be obtained without you having to go to court in person.
• 32:08
  SPEAKER_00: You can reach an agreement by negotiation and file an application for consent orders, you can reach an agreement through mediation, you can reach it through collaborative practice, etc.
• 32:18
  SPEAKER_00: etc.
• 32:18
  SPEAKER_00: But the court will review and assess each application and make sure that the orders being sought or the agreement that you're bringing to the court, right, are just and equitable to both of you.
• 32:31
  SPEAKER_00: And if there's if the court's satisfied that they are fair and equitable, then boom, done.
• 32:38
  SPEAKER_00: You can implement them.
• 32:39
  SPEAKER_00: But if you don't submit to the court, then your agreement is not legally binding, and there is risk in that.
• 32:48
  SPEAKER_00: Any family lawyer will tell you submit, get orders, have it have it legally binding.
• 32:57
  SPEAKER_00: Another question that often comes up is my ex, we're separated, my ex has spent money, or acquired I've acquired assets, they've acquired assets since we separated.
• 33:10
  SPEAKER_00: So if someone has spent down a significant amount of money from the asset pool, or if they have acquired significant assets, it is really important to note that property settlement is calculated based on the current value of your assets, your liabilities at the time the agreement is reached or the orders are made by the court.
• 33:32
  SPEAKER_00: So not at separation, but at the time agreement is reached.
• 33:37
  SPEAKER_00: So if you separate and it takes you three years to come to agreement on your property settlement, the asset pool is what it is at that point in time, not what it was when you separated.
• 33:50
  SPEAKER_00: So this means that if one of you has spent money, it's gone.
• 33:55
  SPEAKER_00: And legally, not a lot can be done to redress that.
• 34:05
  SPEAKER_00: They're not necessarily, but they could be included in the property pool for division.
• 34:11
  SPEAKER_00: Now that's where I'm gonna leave this first FAQ episode.
• 34:17
  SPEAKER_00: I'm gonna come back with a lot more info about kids, what happens with the kids, but they're the top sort of practical and money kind of questions that I get asked on the regular.
• 34:31
  SPEAKER_00: If there's anything that you feel like I've missed and you want to know, if you have an FAQ, feel free to reach out to me, all the usual channels.
• 34:40
  SPEAKER_00: You can find um how to connect with me in the show notes.
• 34:44
  SPEAKER_00: And do remember this is general advice, it is not specialized family law or financial advice.
• 34:51
  SPEAKER_00: Do seek your um your own advisors for your unique circumstances because every couple, every family, every divorce is different.
• 35:04
  SPEAKER_00: For now, thanks for being with me.
• 35:06
  SPEAKER_00: I hope this has helped kind of explain some of the terminology and answer some of the questions that you might have if you are navigating your separation divorce or even thinking about it.
• 35:20
  SPEAKER_00: It's big.
• 35:22
  SPEAKER_00: There's a lot, and there's a lot to wrap your head around and to and to come to understand.
• 35:27
  SPEAKER_00: If you know someone who might be supported by listening to this, please feel free to share it.
• 35:33
  SPEAKER_00: And as always, I'd love it if you could rate, review, follow all the things so we can get the podcast into the ears of anyone else who needs to hear it.
• 35:42
  SPEAKER_00: Thanks for being here.
• 35:45
  SPEAKER_00: I'm Sally Ann Hartnell, divorce coach and strategist, and you've been listening to Reflect, Reclaim and Liberate.
• 35:51
  SPEAKER_00: You can follow me on Instagram at Reflect Coaching, and if you can think of anyone who would love or benefit from listening to this episode, please share it with them.
• 35:59
  SPEAKER_00: I'd also be so grateful if you would follow and review the podcast so we can get it in the ears of a whole lot more people just like you who are ready to reclaim and liberate themselves in life and love.
• 36:10
  SPEAKER_00: I hope you'll join me next week for another episode of Reflect, Reclaim and Liberate.
• 36:15
  SPEAKER_00: Until then