Separating? Sort out your Will

February 8, 2021 Donna Farrell 0 Comments

The Age has reported that many more couples are finalising separations compared to previous years.  No surprises there.  The stress of lockdown has turned up the heat in relationship pressure cookers; and being stuck at home for months may have offered an opportunity to clarify separation plans.  

Relationship Australia’s survey indicated that parenting plans were at the top of most couples’ reasons for seeking advice as they grappled with the logistics of separation.  Other reasons included safety and how to deal with financial stress.  What isn’t a major reason, but should also be considered carefully, is how your Will – or lack of Will – will be affected by separation or divorce.   If you’re separating, sort out your Will.

If you are separating, thinking about separating or have separated during lockdown, here are a few things worth knowing early on: 

  1. Relationships AustraliaThe Separation Guide and the Family Court all offer a broad range of advice for how you might manage your separation. 
  2. To divorce, you must first have separated for a year.  Note: separation includes where a couple lives separately in the same house. 
  3. You do not have to, and in many cases should not, wait until divorce to manage and finalise your property settlement.  You can obtain a property settlement informally or through the Court any time after separation.
  4. If you separate from your spouse but are not yet divorced, your Will – including any appointment of your spouse as executor and gifts to your spouse – continues to be valid.  So, even if you’ve been separated for years, if you’re still married, your old Will still holds.  Also, if you have no Will and separate for years, your spouse will probably still inherit all or most of your estate under Victoria’s intestacy rules.
  5. Once divorce is finalised, any appointment of your spouse as executor and all gifts to them (in a Will made prior to divorce) are null and void.
  6. If you are separating from a de facto relationship your Will may continue to be valid depending on how it has been drafted. 
  7. Even if you do write a new Will post separation/divorce – your former spouse or partner may be able to contest it if they believe you should have, and did not, provide for them in your Will.  


If you are separating and want to check the effect of your current Will, how to organise a new Will, or how to best prevent a former spouse or partner from contesting your Will, then book a free phone advice session with Donna HERE. 

Alternatively, if you have separated or are separating, sort out your Will by completing AT YOUR WILL’s START MY WILL form any time HERE. 

Separating? Sort out your Will was last modified: February 9th, 2021 by Donna Farrell