Legal Updates

Demystifying Separation - Looking Forward

This article is part of our demystifying separation series. For more updates, click here.


What can I do to protect my interests AND WISHES in future?

If you have been through a separation, you will know that the process of dividing your property can take some time and expense. If you are entering a new relationship, it is worth considering how you want to deal with your property should you encounter similar circumstances in future.

Reaching agreement with a new partner before entering a serious relationship can help clarify and simplify the process of dividing your property if you later decide to separate. These are known as “contracting out” agreements.

A contracting out agreement makes it clear who keeps what property in the event you later separate. You can determine what property you own separately and what property you own together. You can also determine the shares each of you have in certain property- for example, if you buy a house together but make unequal contributions to the deposit, you can agree to divide the property based on the contributions the made to it.

Contracting out agreements are particularly useful if you have entered or are entering a relationship with a substantial amount of your own property you have accumulated prior to the relationship. The contracting out agreements enables you to identify that property and clarify any uncertainty about whether your partner has any entitlement to it later down the track.

Discussing contacting out agreements with your partner may seem a little unromantic, however it is worth considering the practical benefits:

  • it will reduce stress to both of you by giving you clarity and peace of mind if your relationship ends. This might be on separation but can also provide what happens if one of you passes away while you are together.  
  • it will minimise the cost to both of you in settling your differences should they arise,
  • it will provide you both with certainty during the relationship and allow you to move on afterwards.
  • If you and/or your partner have come to the relationship with children of your own, it can protect their interests in any assets you have which you want to preserve.

You may also need to consider updating other legal documents you have after your separation. This includes updating or creating a will, enduring powers of attorney (particularly if your ex-partner has been allocated as your attorney, as this does not automatically lapse if you separate), and any trust documents. Your lawyer can assist you to ensure your documentation accurately reflects your wishes and intentions.


What are some practical tips for going through a separation?

There are some simple steps you can take which will help ease the process of separating. Many of these appear common-sense – however in the moment, when emotions or stress levels may be elevated, they are worth being reminded of:

  • Maintain reasonable communication with your ex-partner during the process. This includes responding to them in a timely manner and responding to communications from their lawyer (or instructing your lawyer to respond for you).
  • Be cooperative. Obtain valuations and disclosure of property and give those to your lawyer early on. Delaying these matters will inevitably draw out resolution. Delay could also prompt your ex-partner to take more proactive steps, such as applying to Court to determine your relationship property division which can become a costly exercise.
  • Be cooperative on childcare matters, consistent with arrangements and appointments made, communicate in advance if changes are needed – and explain why. Keep your conversations focused on the issue and make a record of what you have discussed (such as notes or confirming details in an email or text message).
  • Be mindful if your ex-partner wishes to discuss legal matters directly with you, particularly if you have lawyers involved. Refer any discussions or proposals about long-term agreements and arrangements to your lawyer and obtain their advice.

Consider whether you need professional wellbeing support. Even when amicable, separation can trigger a range of emotions which may take a toll when balancing other factors such as a busy work life or children. Speaking to a counsellor or doctor may help. Counsellors can give you practical tools for dealing with things like communication and conflict management, as well as general emotional support. 


If you need tailored legal advice regarding any of the matters we discuss in these articles, get in contact with a member of our team: Ruth Williams.