Many people assume that they need to wait 12 months to begin addressing financial settlement following their separation. What you may not realise is that the ‘12 month rule’ that it is colloquially referred to, is in fact, solely in relation to the formalised recognition of an end of a marriage – a divorce being granted by the Court instead of a property settlement.
The best place to start in explaining what the ‘12 month rule’ does apply to, is by getting clear on the difference between separation and divorce.
Separation is when one partner communicates to the other that they do not wish to continue the relationship – that it’s come to an end or, if both parties mutually agree to separate. One does not need agreement from the other to express this desire to separate. From that moment, there is separation even if both of you are living under the same roof until other arrangements are made.
Divorce however is the formal process of applying to the Court end a marriage following separation. A divorce application can only be made if there has been a minimum period of 12 months from the date of separation. If the Court is satisfied that the legal requirements of the application have been met, the Court will grant a Divorce Order. One month and one day after the Divorce Order has been made, the Order becomes final – formally recognising the end of the marriage.
What is important in all of this is that from the moment of separation and throughout the first 12 months, you can begin to negotiate and formalise arrangements including property settlement, spousal maintenance and parenting arrangements for children.
Why you don’t need to wait to finalise a financial settlement
Why would someone want to start this process so soon? Isn’t that ‘too quick’ or insensitive?
It’s important to remember that the decisions that you and your former partner make and put in place informally now may be detrimental to you and those you care for, later down the track. As was detailed in my previous article Why you may need to be cautious even in an amicable separation, even people with the very best of intentions for each other can have the whole experience involve differently to what they intended, through no intentional fault of either party. What you don’t want to occur can become reality as we have seen for so many people who have waited too long to seek professional advice and done so far too late in the piece.
Rather than looking at it as insensitive or ‘too quick’, look at seeking professional advice about information gathering to allow you to make better decisions. You may not immediately act on the advice or tell your former partner but it will assist you to make decisions. Look at it as an opportunity to establish formal agreements about parenting and financial and to set things up in a way that will mean the likelihood of your intentions being realised is increased.
Why you must wait for a divorce
The Family Law Act requires the timing of 12 months to allow adequate time to consider the very final decision to divorce once and for all. What’s important during this time, regardless of how you or your former partner feel about your separation, is being mindful of what you agree to informally. Without having an understanding of the complexities of what you are agreeing to now, you may be compromised. Having a conversation with a specialist family lawyer will give you clarity on your next steps. Keep in mind that once you seek advice from a lawyer you are not compelled to continue to engage them. The purpose is to get clarity on the likely outcome for you and your family and to find out if what you believe to be a good arrangement to resolve things, is in fact a good arrangement now and in the longer-term.
When timing is key
If you do eventually divorce, it’s important to be aware that there are time limitations which apply once a Divorce Order has been granted. The Family Law Act sets out the requirements post-divorce and if married couples have not finalised a property settlement prior to divorcing, they have a timeline of 12 months after the divorce becomes final, to have it completed. In defacto relationships, once separation occurs, couples have had two years from the date of separation to finalise their property settlement.
What is the best next step for anyone considering separating or who has separated?
You can in fact do a property settlement at any time from the moment you separate. You can also establish formalised parenting arrangements. In my experience – all too often – people come to me with an understanding that they already had arrangements agreed upon with their former partner only to realise later that they have found themselves compromised by those informal agreements.
Sometimes the asset pool diminishes over the course of the separation, sometimes the financial implications of selling and dividing assets causes greater complications than could have been foreseen. All of these decisions are best discussed with a specialist family lawyer who an understanding of the practical implications for you and your family in the long-term.
In essence, it is only the divorce that you need to wait 12 months for. Fortunately processes such as negotiation, mediation or collaborative law mean that in many cases we are able to resolve by agreement without the need to ever attend Court. People who come to us early in the piece are significantly more likely to have a better experience in what research suggests is one of the most difficult times of their lives. Like many things in life, getting early advice about your options sets a strong foundation for the future and allow you to make informed decisions.
Related Articles: About to separate? 5 key considerations you need to know
Phillips Family Law is an award-winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision-making process, we can make you aware of your options. To discuss your situation confidentially, phone (07) 3007 9898 or secure a time by filling in our confidential form here.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.