WA Differences Between Divorce and Separation?

[John Perth]

Good evening,

My situation is that I separated from my wife of 19 years approximately 19 months ago. We have an 18-year-old daughter and earn similar salaries. My wife recently applied for and was granted consent orders relating to property, at the family court of W.A. where I was the respondent.

Essentially, I agreed to hand over my share of the martial home and she agreed not to claim from my superannuation fund. We made a further commitment to make no future claim against each other financially.

Overall it has worked out at a roughly 50/50 split of everything we had. My wife is reluctant to agree to a divorce at this time, as she feels that in our current situation it is unnecessary.

My concern is that without the finality of a divorce, my ex could (if her circumstance change) apply to have the consent orders overturned and make a claim against my superannuation or a claim for maintenance. I do not want to sound mercenary but it is difficult to plan for the future with that kind of financial uncertainty,

My question being, in the circumstances described, do you think being separated rather than divorced changes anything significantly?

Thanks in advance

 

[Lance]

Hi John,

In your situation, it sounds like it probably wouldn't make a big difference other than to finish that phase of the relationship. I personally would be inclined in your situation to finalise the relationship with divorce while things are still amicable.

Try talking to your ex and suggest its the next step to moving on. Better to both agree.

Good luck.

 

[sammy01]

So she clearly owns the house legally - no dispute, especially if the title of the house has been changed into her name only. But as your wife, she is the default to pick up your super if you die. You could have a will that bequeaths the money to your daughter, for example, but as your wife she could challenge it.

It seems she got what she wanted in the assets division, now she wants the set left, just in case.

Look, you can do a sole application for divorce - it might cost a little more, but it gets the job done... Then get a will just to be sure...

 

[John Perth]

Thanks Lance and Sammy for your response

The house has not yet been signed over to my ex, but will be when she has arranged a new mortgage.

At this stage I'm not too concerned about what happens to my super when I die (though I would rather it go to my daughter than my ex) but rather that it could complicate things in the future, should I decide to switch over to a SMSF?

Though not likely, I also wondered what would happen if my ex decided to go part time at work..Could she make a claim for maintenance from me if we are still only separated rather than divorced?

 

[sammy01]

Spousal maintenance aint likely, and would have to be part of the consent orders.

My thoughts - sign the consent orders. Get divorced. If she doesn't wanna get divorced agree, the once the ink dries on the consent orders, get divorced anyways...

You can do a sole application, it will cost about $300 more - money well spent

 

[John Perth]

Thanks Sammy,

Consent order is already stamped and lodged with the family court of WA.

The impression I'm getting is that being separated or divorced does not really make much difference once the consent order is rubber stamped by the court?

 

[sammy01]

it is a good idea though just for practical reasons...

So you stay married (legally), you win 5 mil in the lotto in 5 years... because you'e still married she could come back and make a claim. Look all stupid hypotheticals aside, it just finalises stuff...