Separation vs divorce

Separation is the act of ending a marriage or de facto relationship, where the spouses are no longer a couple. This may be initiated by one partner, or by both partners mutually agreeing to separate. There is no legal document that confirms the date of separation.

Divorce on the other hand, is the legal ending of the marriage. Before being able to apply for a divorce, the couple will have had to be separated for at least 12 months.

For marriages, separation will occur when the spouses no longer intend to be a couple and before being able to apply for divorce to legally end the marriage, they will need to wait a minimum of 12 months from the time of separation. Whereas for de facto relationships, there is no legal equivalent to divorce.

Where you have a Will in place

If you were married or in a de facto relationship and you have a current Will in place, your Will is not affected by a separation from your partner.  So, if your Will appoints your spouse as your executor, or gifts your estate to your spouse, if you were to pass away (when separated but before the divorce is finalised), your ex-spouse would still act as your executor and receive the gifts made to them under the estate.

If family law proceedings were underway (but not finalised) between you and your spouse and you were to pass away, if your spouse is appointed as your executor under your Will, they would be responsible for acting on behalf of your estate and could discontinue family law proceedings against themselves. Yes!

Divorce, on the other hand, does affect the terms of your Will. Once a divorce is complete (which is a minimum of 12 months after you separate), then the Succession Act provides that:

• any gift made to your former spouse is revoked once the divorce order is made, and that gift will no longer be effective;
• certain appointments of the former spouse are revoked. This includes the appointment of your former spouse as an executor or trustee under your Will; and
• any power of appointment is revoked where the former spouse has the right to exercise that power, or where the power of appointment is made in favour of the former spouse.

Divorce does not revoke the whole of the Will, only those parts of the Will that made gifts, appointments or some powers to the former spouse. It treats the provisions of your Will as though your former spouse had predeceased you.

Careful consideration should be given to how your Will operates when the gifts and appointments of your former spouse no longer operate. For example, it may be that one of your former in-laws are appointed as your alternate executor, or that part of your estate is divided among your in-laws.

There are some exceptions to the above:

• Where a trust is created which includes your and your spouse's children as beneficiaries, then your spouse's appointment as the trustee of that trust will continue;
• Where a power of appointment that your spouse can exercise and your children will receive the benefit of an exercise of that power of appointment, your spouse can still exercise that power; or
• If your Will includes some direction or requirement for your estate to pay a debt to the former spouse, then that repayment will still be made.

While the effect of this may be that your former spouse is cut out of your Will, your former spouse may still have an ability to challenge your Will and make a family provision claim against your estate.

Where you have a Power of Attorney in place

Separation does not affect any existing Power of Attorney that you have in place.

If your Power of Attorney appointed your spouse as your attorney, then they would still be capable of acting on your behalf after separation. Your attorney is still required to act in your best interest whenever acting on your behalf, but if this requirement is breached it would require action to be taken against any problematic decisions.

A Power of Attorney is also not revoked by divorce, even where the attorney appointed was your spouse. If it is no longer intended for the attorney appointed to continue to act, then it is necessary to revoke the Power of Attorney.

So, whether you are separated or divorced, your Power of Attorney will not be affected. You should seriously consider revoking your Power of Attorney and preparing a new one.

Where you have an Appointment of Enduring Guardian

An Appointment of Enduring Guardian is not automatically revoked or terminated by either separation or divorce.

If your spouse was appointed as your Enduring Guardian, then they would still be able to make lifestyle and medical decisions on your behalf if you were involved in an accident or no longer capable of making those decisions for yourself.

If you no longer wanted your spouse acting in that role, you would need to expressly revoke their appointment as your Guardian and prepare new documents.

Important timing considerations – before and after your family law matter is finalised

A family law matter will often result in a significant re-structure of your assets and liabilities, as previous jointly held assets are sold and new solely held assets are purchased. 

While it may be tempting to hold off considering your Will until after the family law matter has been finalised, as separation does not have any effect on your Will and there is a minimum timeframe of 12 months between separation and divorce, it is best to review any existing Will when it is clear that the separation is permanent. 

This can be a very emotionally sensitive time, and while you would not want to do anything to disrupt an otherwise amicable separation, care should be taken to ensure your estate is protected. 

We will work with you to undertake a review of your current circumstances to consider the way that your assets are presently held either in your name alone or jointly with your former partner. Following that review, it may be beneficial to make interim arrangements to update your Will or estate plan to address the immediate situation following separation, with a more comprehensive review to occur following your family law matter and divorce.

If you have never made a Will – the laws of intestacy apply

If you do not have a Will in place, and you have separated from your spouse but not yet divorced, then your spouse may still occupy roles that you would no longer want them. 

If you pass away without a Will, then your estate passes to your closest relation under the laws of intestacy. Depending on your circumstances, this could mean that your former spouse, even where you have separated, becomes wholly entitled to your estate.

Superannuation

Any Binding Death Benefit Nomination that you have made for your superannuation entitlements should be considered in the event of a separation or divorce.

If no Binding Death Benefit Nomination has been made, then typically your superannuation trustee or provider will retain a discretion to decide who to pay your superannuation entitlements (including any life insurance in super) to.

Your superannuation can only be paid to limited persons who are financially dependent on you, or to your estate via your executor (known as your Legal Personal Representative). For certainty in knowing that none of your superannuation entitlements will be paid to your former spouse after separation, it may be necessary to prepare a Binding Death Benefit Nomination and update your Will.

Joint tenancy and joint ownership

Property can be owned by two or more people either as joint tenants or as tenants in common.

Where property is owned as joint tenants, if one of the joint tenants pass away then the property will automatically pass to the surviving joint tenant(s).

Where property is owned together as tenants in common, then the share of the deceased tenant in common is dealt with under the terms of their Will.

Often, property purchased as a married couple is held as joint tenants. If after separation it is no longer intended that your spouse receive your estate, then investigations should be made to determine how any property is held. If, in that scenario the property is held as joint tenants, then the joint tenancy can be severed through registration of a document with the Land Registry Services.

Where assets such as bank accounts or shares are held jointly with another, then if one owner passes away the asset will pass to the survivor irrespective of the terms of your Will. 

In summary

Separating from a spouse will not affect any previous Will, Power of Attorney or Appointment of Enduring Guardian. Following an irreparable separation, reviewing your estate plan, including your Will, Power of Attorney and Appointment of Enduring Guardian, is recommended to ensure that your estate passes to the persons you want it to, and the persons you want to act on your behalf are appointed.

While divorce does have an effect on your Will, this does not take effect until the divorce is finalised (being at least 12 months after separation), and it is still recommended to review your Will in case the outcome is not what you desired. 

At E&A Lawyers, our estate planning team can assist you with any requirements for your Will, Power of Attorney or Appointment of Guardian. We will look at your specific requirements and ensure your documents reflect your wishes.

Further reading you may find useful or interesting?

You may also like to read:

• Effect of marriage on your Will and other estate planning documents
• The risks of DIY Will Kits
• Handwritten and other informal changes to a Will

Get help from a Wills and Estates lawyer

As you can see, there is a bit to consider, in relation to estate planning, once you separate or divorce.

To ensure you protect all your future rights and entitlements to property and choice of decision-makers should you become incapacitated, we strongly advise you seek legal advice about what's required in your specific circumstances. 

We can assist you in relation to precisely what needs updating or replacing and can also assist you in drafting new estate planning documents from your Will through to Powers of Attorney and Guardianship documents.

You can contact us through reception by phone or email to arrange a consultation.

Contacting E&A Lawyers

For more information or to arrange a consultation with a lawyer, you can call or email us.

📞  02 9997 2111

📧  info@ealawyers.com.au