At Affinity Lawyers, we know that when a separation occurs it can be a stressful, emotional time for parties and the period of time in which a property settlement is being finalised can often pass by in a blur, leaving parties at the end of the process feeling emotionally drained and with little recollection of the months prior.
As has been highlighted in a previous newsletter article, there are time limits imposed on different applications which can be made under the Family Law Act 1975 (the Act), and for the purpose of this article we repeat the following information in respect of an Applications for Divorce.
Pursuant to the Act, parties must be separated for a period of twelve months (subject to some limited exceptions which will not be discussed here), before they are eligible to file an application for divorce.
Property proceedings between separated spouses are usually conducted shortly after separation occurs in order for the parties to move on and resume their respective lives. However, due to the time frame in which an Application for Divorce can be filed, it is often a forgotten or ‘pushed-aside’ step in the severing of ties between the parties, and thus, many separated couples still remain legally married.
The potential problem with separated couples remaining legally married arises if the divorce has not been finalised when someone passes away, irrespective of whether parties have separated or not, the former spouse is entitled to any gifts made under the Will, and could be able to make a claim under the Intestacy Rules by virtue of their marital status. Of course, this would likely be the opposite of what the deceased person intended and can often leave the defacto/family members close to the deceased at the time of their death out in the cold and without an entitlement to any of the deceased’s assets.
Accordingly, it is of vital importance that married parties who have separated ensure that they:
- Update their Will as soon as possible after separation to ensure it accurately reflects their wishes; and
- makes application for a divorce (and ensure that it is finalised!) as soon as they are able to after separation (or at the very least makes note of the date they are eligible to apply and re-assess their situation at that time).
This will assist in ensuring that your assets will go to those whom you wish to be beneficiaries, and not be directed to your ex-spouse upon your passing.
Should you require assistance in relation to a Family Law matter or if you wish to update your Will, please contact one of our friendly and experienced Gold Coast Lawyers on 07 5563 8970 to arrange an initial consultation to discuss your matter.