Not so happy Valentine's Day
Posted: 14th February 2017
Posted by: Luke Brandon, Partner
It’s Valentine’s Day and if you subscribe to that celebration then you have no doubt scribbled down some poetry on an overpriced card and then promptly made a reservation for a nice dinner (to make up for the bad poetry). If, however, you are contemplating separation, then 14 February is no cause for celebration.
As is often the case, the desire for separation is not shared by both parties to the relationship. One party seeks to separate, but the other wishes to continue on in the relationship. Under Australian Law, only one party needs to be desirous of separation and agreement from the other spouse is not necessary. However, in reality, separating is a difficult proposition to carry out. That is certainly the case for the less financial spouse seeking to separate, with the more financial spouse being desirous of continuing the relationship.
Take an example of a married couple, the wife with two young children, who has given up her paid employment to raise and provide for the needs of the children, whilst the husband pursued his high paid career and provided financially for the family. Fairly traditional roles, still being adopted by many Australian families, particularly those with preschool aged children. The wife wishes to separate and has expressed this to the husband but he is resistant to same. The parties have engaged in family counselling, but the wife still wishes to pursue separation. The wife asks the husband to leave, and take up some rental accommodation whilst they sort out division of property. She says it will cause less disruption to the children given that she will have their ongoing primary care. There is no issue over the husband having the available financial resources to afford rental accommodation and he is too busy with work to care for the children other than on weekends.
The husband refuses the wife’s request and says “I’m not moving and I’m not paying for you to live somewhere else. If you don’t want to be my wife, then you don’t get the money which comes with it”. Some reading this may be shocked, others might be reading nodding their heads saying to themselves “fair enough”.
Well – here is how the law deals with it:-
- Under the Family Law Act 1975 – the wife could apply for sole use and occupation of the family home along with a spousal maintenance order for periodic weekly or monthly payments of support; and
- Under the DVFPA Act 2012 – the wife could apply for a Protection Order given that the husband’s response would be deemed an act of domestic violence, with the amendments made in 2012 broadening the definition to include economic abuse.
If you are contemplating separation or if your spouse has approached you and expressed a desire to separate, it is worthwhile approaching an expert family lawyer to take advice on the best way to move forward. Often it is what occurs and the decisions which are made at the time of separation which sets the course and tone for how financial and parenting matters are resolved including whether litigation is commenced or whether the matter can be resolved amicably.
At Evans & Company Family Lawyers, we have helped Gold Coast families work through their issues following separation for nearly two decades. We have vast experience and there is not much (if anything) which we have not seen before such that we will be able to give you options and strategies on what will work best for your individual needs.