Separation with lawyer Peter Hooper
Peter Hooper is the legal practitioner Director of Brisbane Family Law Specialists Pty Ltd trading as Hooper Family Lawyers. Peter has been a Queensland Law Society Family Law Accredited Specialist since 2007. He’s been in the Redlands for about 10 years now.
I felt it was important to have a lawyer on the show to educate and inform the listeners about separation. Peter explained that…
Separation under the law requires three things
- That there’s an intent to separate by one party.
- A communication of that intent to the other party.
- And then acting upon it.
If somebody decides the marriage is over and then through words or actions communicates that to the other party and then they act upon it, that’s an official separation.
Just by leaving the house simply does not mean there’s a separation there. And indeed, staying in the house doesn’t mean there’s a separation.
What separation can look like
You can be separated under one roof, or you could be together and in different houses. The physical separation is not the real issue. It’s more the intention.
Peter explained it’s not unusual to get somebody to come in and look for advice before, thinking of separating and they want that advice to see what would happen if that occurred. What would that look like? And sometimes there’s an incident for example infidelity or something along those lines. So, the person in question isn’t sure whether they want to separate or not, they’re just simply seeking some information.
Under the family law act, legal practitioners are required to refer appropriate people to counselling services. And that’s in an effort to preserve the relationship, which is ultimately in the best interest of everyone concerned.
Why it is important that people have independent advice from a lawyer
Ensuring there is a power balance. It’s to empower individuals so that one party can’t exert power or influence over the other party. So, the family law act contemplates that people ought to reach agreements with respect to their parenting and property issues, but you cannot do that if there’s a power imbalance. So independent, legal advice addresses that imbalance.
Mediation is helpful with mechanisms and interventions in place to prevent power in balance. The fundamental requirement of independent legal advice goes towards that. A lawyer has an obligation not to be conflicted in terms of their duty and interest as well. So that’s an ethical obligation there that if I’m acting for you, then I need to put all of my efforts into acting in your interests. And I can’t divide that between you and another party.
Some interesting tips from my interview with Lawyer Peter Hooper
- Divorce, there’s only one ground for divorce in Australia, which is the irretrievable breakdown of the marital relationship evidenced by 12 months of separation. You need to work out a date of separation and be separated for 12 months before you can apply to the court for a divorce.
- Now, if during that 12-month period of separation, you decide to get back together. And if you are back together for under three months and then decide to separate again any prior period is added to the subsequent period to get to your 12 months.
- If it’s a marriage that’s under two years from the date of filing, then you’ll need a counselling certificate to show you tried to get the marriage back on track.
- Since 2009, in most Australian jurisdictions (including Queensland) de facto property adjustment on separation/de facto maintenance, is dealt with under the Family Law Act. Prior to this de facto couples had to make a claim in a state court pursuant to the Property Law Act. Now de facto couple are treated almost identically to married couples.
- If you’re in a position where you are thinking of separation get educated which is empowerment.
- We encourage reconciliation and a part of that process can be getting the information you need to at least know where you stand. So, you feel a little bit more comfortable.
- “And as I said to you earlier, it’s not uncommon for me to see somebody come in to this situation, extremely distressed and extremely worried about the future and then have some advice and walk out feeling a lot better about at least where they stand. And I think that probably makes it easier for people to engage in reconciliation discussions as well. If you can remove some stress, then perhaps there’s an easier way to move forward.”
If you are in the position of separation make contact with Peter Hooper to get those questions answered and I can support you with the emotional and the anxiety that can come with this stressful time in your life.
Tune into to my Empowered Marriage Podcast to learn more. This fortnight’s podcast is available now and discusses this topic in more depth. Separation with lawyer Peter Hooper – https://www.powerofchange.com.au/empowered-marriage-podcast/