fbpx
(02) 8379 1892
Make a Payment
Make a Payment

Media & Links

Podcast: Lawfully Explained – Unhappy Marriage, Happy Divorce

(Season 1, Episode 4)
AD: Interviewer   NE: Interviewee

Listen to the whole Podcast here

Hi, I’m Amy Dale and I’m not a Lawyer, but since working at the Law Society I have met and worked with plenty of them, and I have also met countless people who need help understanding the Law and, more importantly, knowing how to find the right Lawyer.  That is why we have created this podcast, to help make the Law accessible for you, for me, for everyone, no jargon, no law speak, I promise.  Just me diving into the most common legal problems to help you make the best decisions possible.  Welcome to Lawfully Explained.

‘No fault’ divorce means Australian Courts generally will not consider why a marriage has ended, and statistically many once happy unions do.  Family Law Specialist Nicole Evans is here to explain why divorce battles turn ugly and how you can navigate the system to avoid that post marriage messiness.  Nicole welcome.

NE:

Thank you.

AD:

Just to begin things, if people are going through a divorce, what is the number one reason why they need a Lawyer, and can people go this alone?

NE:

I think the main reason people should have a Lawyer is to give them advice along the way, a bit of a helping hand as it is a really difficult progress to go through.  I always say to my clients, it’s a bit of a roller coaster ride.  Sometimes things are great and sometimes things get really bad.  But a Lawyer can give you good advice on what your rights are, your entitlements and just give you a helping hand through the process.

AD:

From the initial conversation where a couple sits down and says we are done here, are you able to break that process down for me, of what happens after that, “I think it’s over” conversation.

NE:

So, what we would normally do with a client is say, in terms of property, we need to work out what the assets and liabilities are of the parties. And you would be surprised that actually quite a lot of clients will say “I don’t even know what we own”, so the first step would be to get financial disclosure from both parties. So, bank statements, credit card, loan documents and we sift through those to see what current balances are, what the parties own together in terms of properties, shares and we sit down and work out what their assets and liabilities are on a Balance Sheet. Once we have the Balance Sheet sorted, then we can work out what each party may be entitled to, and then we will sit down and come up with a proposal that the client is happy with. Once there is agreement on that then we would draft a set of documents called an Application for Consent Orders and Consent Orders, and then those get filed in the Family Court Registry.

AD:

A lot of us have seen movies like Kramer v Kramer and Marriage Story and there seems to then be a perception that the minute the Lawyers are called in, it turns ugly and very very messy, but is that always the case? Can there be situations were calling a Lawyer in is actually the process that can keep the peace rather than beginning the “I’ll see you in Court” style show downs.

NE:

Yeah absolutely and more and more these days people see the time and costs involved in going through the Family Court and want an alternative option, so the collaborative divorce process is becoming more and more common, and people will sign collaborative agreements saying that they both agree not to go to Court, and they will sit down and go through, like a mediation process, over a few months with accountants, financial advisors, child experts to come up with an agreement in terms of property and parenting that works for everybody.

AD:

Often people may be reluctant to engage Lawyers because of a concern about the cost, and particularly when they might be thinking that what was once one pot has then been split into two, how is that cost determined when people are engaging Lawyers? Does that come out of a joint asset, or are people responsible for bearing their own costs?

NE:

Generally, each party is responsible for bearing their own costs, and that can create a bit of a powering balance in some situations. There can be orders made by the Court for a dollar for dollar order, so if one party has access to significant funds and the other doesn’t, you might make an application for that type of order. So, every time the ex spends a dollar on his or her legal fees then the other party gets a dollar as well. There is also legal funding options now for people, if there is property and some Lawyers do fixed fees or payment on settlement, there are a lot of options for people now.

AD:

This is probably a very broad question, but how much does it cost to go through the divorce process with a Lawyer?

NE:

That is a very very broad question. A simple divorce process of “we want to get divorced” is relatively cheap and parties can do it themselves. Separate to the divorce order you have your property settlement or parenting arrangements. If you can’t agree on any of those things, and you are in Court for a couple of years, you are looking at least a couple of hundred thousand dollars.

AD:

Is the most common reason for engaging a Lawyer in the divorce process having children? Is this an easier process for couples who don’t have kids?

NE:

Yes, generally speaking yes. When children are involved, people do become more emotionally obviously it is a priceless item of the relationship. So yes, generally if there is children it will end up being more fought over than money.

AD:

And it’s probably in those situations I imagine incredibly difficult to go alone without a Lawyer.

NE:

Absolutely.

AD:

Obviously in Australia there is no fault divorce, does that mean exactly what it says it is, so if I am responsible for a break up, no Judge is going to come and tell me what a terrible spouse I was in the process.

NE:

Look it is very common that people have affairs.  From the Court perspective it’s a no fault jurisdiction, so you don’t get a slap over the wrist because you cheated on your spouse, but if that has impacted the children, then that is where it would be relevant in terms of parenting, but not really relevant in terms of property.

AD:

So, if people have an idea that they can come to Court and lay out to their former partner, here is everything that you did wrong in the course of our marriage, that is not what the Court process is like?

NE:

No. And the Court doesn’t like parents who file Affidavits bagging out the other parent.

AD:

Bad form.

NE:

Yes.

AD:

How possible are dead on 50/50 splits in divorces?

NE:

If the parties agree, then you can move forward with 50/50, so if the parties agree on whatever arrangements they like, that can be documented in Consent Orders. If they don’t agree, then it will go to Court and a Judge will decide. For parenting 50/50 arrangements will generally only be made when the parties live close by, have a good relationship, there is not high conflict, and the children have a good attachment to both of them and normally when the kids are of school age.

AD:

How frequently do you see protracted custody battles, and I know that often in the media we have seen high profile cases or people will talk about the father’s rights, how does a father fight for custody in a Family Court battle?

NE:

In the Family Court the father has the same equal rights as the mother does. Both parents generally will share parental responsibility, which means making major decisions for children in relation to health, education, overseas travel and generally orders are made for equal parental responsibility unless there is domestic violence, issues of risk, mental health issues so from a first point a father would have the same rights.

AD:

Talk me through a little bit how things differ when allegations of domestic violence are involved in a marriage break down?

NE:

If there are allegations of domestic violence, particularly when kids are involved, the Court will always err on the side of caution until those allegations can be determined in a criminal Court, so at a first interim hearing in parenting cases, it is about minimisation of risk of harm to children, so putting orders in place where the children may be able to spend, meaningful time with a parent who may be the subject of those allegations, but in a safe way for the children, because unfortunately allegations are made in cases where a party thinks it might give them an advantage, and because of the time frame it takes to get through the Family Court, you might end up in a situation where a father or a mother doesn’t get to see their children or spend meaningful time with them for, could be, 1 to 2 or 3 years, so it is about putting in place some orders that protect the children but it still allow them to spend time with parents. Of course, that is different in cases of serious domestic violence, until those allegations are dealt with, the Court will put orders in place to protect children and the parties as well.

AD:

When there have been allegations of domestic violence made, and that process can take a long time to be analysed by a Court, what happens to the kids in that interim stage?

NE:

The Court will want to make sure that the children are still spending time with each parent, if it is safe to do so. They will put mechanisms in place to ensure that it is safe including supervised contact with one parent or time through a contact centre. Supervised time might sound a bit scary, when you first hear the term, but it can also be to protect a party who has had the allegations made against them. They will do very detailed reports on each contact, which are actually really helpful for the parties and for the Court.

AD:

Do they make those assessments while the visit is happening or is that something that do afterwards?

NE:

They will take notes and then normally a couple of days after they will send through a really detailed report on what’s happened during that contact, conversations between the parent and the child, physical interactions, whether they think there is a genuine happy attachment and relationship or whether they have any concerns.

AD:

What happens in a situation where an allegation of domestic violence has been made, and someone wants to really challenge that accusation?

NE:

If there is a Family Court allegation of domestic violence and there is not a criminal allegation, then that allegation will be defended in the Family Court, so Affidavits will be filed and ultimately people will be cross examined on whether it happened, and a Judge will make a decision on basically who they believe. If there are allegations and they may also be related criminal charges, then a Criminal Court will determine whether they believe that it happened and again the parties file Statements, they are cross examined and a Magistrate will decide who is the most credible, if there are witnesses then that obviously assist the Court, but ultimately the Magistrate will make that determination.

AD:

Is it the same standard of proof when a Family Court Judge assesses it as it would be, if the person had been charged in a Criminal Court?

NE:

That is a very good question. It is not actually. So, in a Criminal Jurisdiction, if a person is charged with assaulting their spouse, to be convicted it’s beyond reasonable doubt and in the Family Court it’s a balance of probabilities of whether that happened.

AD:

In the Court case, and while the Court case is ongoing, Judges and those involved don’t want people to use the case as an attempt to prosecute what went wrong in their marriage, is there any time along the process where people want to have the chance to sit down and say emotionally this has been the impact of the marriage and the ending of the marriage and do you as the Lawyer often have to be that support person providing assistance to someone when they are feeling really vulnerable after the end of their marriage?

NE:

Yeah absolutely, you are supporting a person through what can be one of the most difficult things to go through in their life, and part of being a good Lawyer I think is also being part Counsellor, you are holding their hand and supporting them and they do always want someone to talk to and often through that process when something happens or goes wrong you are the first person they call, even if it is not a legal issue, because they feel like you understand what they are going through. We will always say to clients you should get some counselling and support through the process because it is difficult, and often they do want a time and a place when they can ventilate those issues of what they think happened to them in the relationship or what went wrong and mediation is a really good way of doing that because it is all off the record, so nobody can use what the other person said in Court, but it is a good way to ventilate how they feel and for the other person to acknowledge what happened and for the parties to try and move on together from it.

AD:

Almost feels like a quasi-restorative justice model of getting people to sit down and say this is how I feel when this happened and I suppose express sadness, and I suppose also regret as well for their own part. I am sure that in most cases do you see its sort of an equal responsibility of the marriage ending or do you typically see its more one person has really stuffed up?

NE:

A bit of both. I think there is always 2 parties to blame generally for a breakdown. Things go wrong and it escalates but look there are cases where someone has had an affair or just up and left the spouse and the kids for no sort of apparent reason, you see everything.

AD:

Do you see a fair bit of blindsiding in regard to things like if you have seen hidden spending discovered or secret accounts or secret lives, how common is that?

NE:

Unfortunately, the cases that we see its pretty common. Through the financial disclosure progress, a party will go through their ex’s bank details with a fine tooth comb and highlight certain transactions, so there has been a few cases where a spouse has uncovered certain spending habits, which hasn’t been very pleasant for them, not knowing that that was going on in the relationship.

AD:

What are some of the cases that you have seen like that?

NE:

Cases where people have excessive gambling, excessive use of prostitution, online shopping you name it, I think we have seen it.

AD:

Wow that really covers quite a spectrum of spending habits, how frequently do you see situations where someone has attempted or does clean out a bank account or get removalist to the house and take everything out of the house, and leaving someone thinking I have no money, all my stuff has been cleaned out, how frequently do those sorts of situations occur?

NE:

It really does depend on the way the relationship ended as to how the parties behave. When I see a client for the first time I will always ask, how did the relationship end? Because a lot of the time you tell how the other person is going to behave because of that. Lots of occasions where parties have gone to buy food for dinner and the credit card has been declined because the bank account has been cleared out. Always make sure that you have joint signatories on any joint bank accounts once you separate.

AD:

What about situations where someone has arrived back at home and everything in the house has been taken out from underneath them, does that sort of behaviour occur?

NE:

Yeah absolutely it’s not as common, particularly with children, but certainly people will again be out at work or shopping and come home and photos in frames have been replaced and furniture gone and they had absolutely no idea that their ex was in the house that day and clearing things out.

AD:

Is that legal? Or is it a bad thing to do, just wrong.

NE:

It’s a bad thing to do, the Courts are not going to like it. It is not illegal if you are withdrawing money from a joint bank account and ultimately the Court will take that into account on any final property division. If a party does that, it’s not like they get to keep it ultimately, it will be taken into account and the same with furniture, if the properties owned jointly both of you have legal access to the property and you can go in and take whatever furniture you want. But again, it is not a good look and we certainly wouldn’t be advising anyone to do that.

AD:

What happens with debt in a marriage? Does that then become a dispute of someone saying, well I paid off more of the mortgage or I was the high income earner, I contributed more to the rent and how can Courts assess debt and who is responsibility for carrying that debt into the future?

NE:

When we do a balance sheet we look at the parties assets and liabilities. So, debt will always go on as a liability. When it is in the balance sheet it belongs to both parties, so when we work out entitlements of each of the parties, we look at what their contributions were coming into the relationship, their financial and non financial contributions during and then we look at what their future needs are, so their ages, their health, earning capacity and who is going to have care of the children.

AD:

These are obviously quite serious things to be determining what belongs to who, what has been the most frivolous thing that you have seen people fight over?

NE:

People fighting over the family pet, a particular painting that someone has gifted during the relationship and the parties are so upset with each other that they will spend all day and will be prepared to pay their Lawyers more than the cost of the actual item that they are fighting over.

AD:

To say that belongs to me.

NE:

Absolutely, just so their ex doesn’t get it.

AD:

So they are like I am going to take this and just throw it in the bin once I received it.

NE:

People will say I don’t want it, I just don’t want them to have it.

AD:

With pets how frequently do people fight over pets?

NE:

It’s pretty common actually and more and more these days. We will be drafting parenting orders and property orders and the property orders there will be clauses around who retains the family dog, visitation for the other parent, who is going to pay the vet costs and cost of food and vet expenses.

AD:

It’s funny now because we always refer to ourselves as fur parents, but pets still fall under property and not parenting orders.

NE:

Yes. For now.

AD:

Should be some kind of fur parent amendment, if someone is arguing over a pet, do people come down to “well you know that the dog has always liked me more than you”, how do people interrogate it or is it “I was always the more responsible owner than you” or something like that?

NE:

Yeah, it will be who initially wanted the pet. Who spent the most time with it. Who is going to be more available to take it for walks, for example or if one parent has the children then they will say well we have the kids, so we want the dog to stay with the kids.

AD:

I all of sudden have visions in my head of a dog or cat being in the middle and which/who am I going to like or who are you going to come to. The cat would probably be like neither of you.

NE:

Ask the cat to choose.

AD:

Exactly, the cats like I don’t want either of you. I just want everything to myself.

How do you account for emotional value of something versus real value? So say I am thinking of an example like a painting, it may not actually be worth that much, it might not be a gallery worthy painting, how much of a factor does emotional value come into something or is a Court strictly there to look and say when working out assets to say this is financially worth this much. Does emotional value come into that at all?

NE:

Not really. It is more around the financial value of the item, but certainly if the parties can’t agree and they go to a final hearing, then that person would be able to make submissions to the Court on why they should retain that item, separate to the value of it. It might be a family heirloom that has been past down through generations, and that is something that the Court would consider.

AD:

Spousal maintenance is a phrase that I often hear badly about. What exactly is spousal maintenance?

NE:

Spousal maintenance is payments made from one party to another on separation. It is based on one party’s capacity to pay the other and the other party’s need for it. If you look at a stereotypical situation of a mum and a dad, and dad has been the bread winner and has been on a high income and they have separated and mum has been at home with the kids, and on separation dad still has that high income but mum hasn’t worked for 10 to 20 years, so needs some time to retrain, so the Court might order spousal maintenance in that situation, so that the mum has some funds coming in for a period of time until she can do a course of retrain and get a job in the area that she would like to work in.

AD:

And if we are thinking in a more gendered line of saying someone who has had the mother role and they may have said well I raised your children for you, and you would never have reached the heights that you did professionally if I wasn’t at home raising your kids for you and maintaining a house, is spousal maintenance almost a way of a recognition of the emotional labour that perhaps someone did at the expense of their own professional ambition.

NE:

Yeah absolutely. One party has sacrificed their career to take on that role of being the home maker/parent, and the Court looks at that contribution now as an equal contribution to that bread winner role, and it’s the role of the homemaker parent, and it is seen as very valuable.

AD:

Have you ever seen an example in spousal maintenance where someone has taken advantage of that system and stretched things our past a point, in terms of waiting to get new employment, or something like that or have really tested the limits of that system and the good faith that it is built upon.

NE:

There’s always those cases where people sometime might take advantage of the system and because their spouses had such a high income and for them its well maybe I will just accept this and not have to do anything for a while and just enjoy life and let them look after me for a little while.

AD:

It’s been a couple of years now since Australia has had marriage equality, where there any problems that same sex couples ran into, including some people who perhaps had gotten married in countries that legislated marriage equality before Australia did?

NE:

Yeah we have had lots of people get married overseas, in jurisdictions where it was legal before it was legal in Australia and for the past few years it has been legal here and the law now recognises people that were married overseas as being married here, and then subsequently on separation those parties have tried to get divorced and have run into a few difficulties because they don’t live in the country that they got married in.

AD:

Oh wow, so do you then have to return to the country to file that paperwork?

NE:

Yeah, so originally it was, do we have to get a divorce in that jurisdiction, or can we get it here in Australia, so Australian Courts will now recognise that because the parties now live here.

AD:

So, they can process the end of that relationship and then if people subsequently want to get married in Australia.

NE:

Yes.

AD:

With same sex partnerships where people have gotten married overseas, but before that was legally recognised in Australia, what happened before marriage equality, how did people formally recognise the end of a relationship if at that stage wasn’t even formally recognised in Australia?

NE:

Unfortunately, they didn’t have to do anything because the law didn’t recognise it here, it never existed, so technically they weren’t married, and they didn’t need to get divorced.

AD:

I wanted to ask you a little bit about pre-nups and I imagine in your work, every day in the Family Court you see couples who, at what point in times stood up in front of everybody that they loved and said that they would be together forever and love each other forever and I suppose in the love rush of planning a wedding, people don’t like to have conversations about pre-nups because it feels like a little bit of insurance that you are taking out, of course I will love you forever this is all beautiful and wonderful and perfect however, if things turn badly, what advice do you have on pre-nups and how bad is it if you don’t have one?

NE:

There tricky tricky things these days, a lot of family lawyers won’t touch them.

AD:

Interesting why?

NE:

Because they are more and more so becoming overturned. The Family Court is about fairness and equity and pre-nup, we call then financial agreements, are generally made in a situation where one party has significant assets and another party doesn’t so the Court will always look at the length of the relationship, did they get married, are there children, it may not be what’s just and equitable at the end, sometimes a party gets given an agreement to sign a day before the wedding, or just before they are about the walk down the aisle, and in cases like that you do see sometimes they get overturned because of duress. Because a party feels like well if I don’t sign the agreement then we won’t be getting married, so I have to sign it.

AD:

Also imagine at a time when you are planning a wedding its almost like people saying, “don’t worry, we will never use it because we are never going to split up”, how petting have you seen things get in Family Court battles?

NE:

As I have said before people can get very very petty, people will sit in Court and say to you, I don’t care how much it costs I would rather you have all the money then my spouse.

AD:

What do you say when someone says something like that to you?

NE:

I say that’s great but actually at the end of this process I want you to walk out and be happy and be able to move forward and I know you feel that way today, but you will wake up in the morning feeling very different and actually that money also belongs to your children, so I know it is really difficult, but you have to think about the future and think about your children and try and move forward in a positive way.

AD:

Do you experience this, that people get a rush of blood to the head that when they are right in the middle of dividing all of this up, it does become more adversarial and combative, and do you see after that process people all of sudden, almost like a white line fever, that people are like oh wow that got quite intense and I got quite competitive about items of furniture or something like that.

NE:

Yeah absolutely, you get caught up in the process and it becomes, for some people, about winning. So, it is good to tell someone to have some time out, take some time away, take a few days, go away think about it, talk to family and make sure you are making the best decision for you and your children moving forward.

AD:

Do you get many repeat clients?

NE:

Funny question. Yeah, look I have had clients who will be counting down the days until their divorce order takes effect so that they can book their wedding to their next spouse.

AD:

So, it’s usually about a year from divorce?

NE:

You have to be separated for 12 months before you can file and Application for Divorce, and that divorce will take effect one month and one day from the divorce hearing, so people will be slotting in the calendar the day after that to plan the wedding.

AD:

No divorce date. I don’t know if working in family law you have an array of happy stories and happy endings, but do you have some examples of stories where things have come together quiet seamlessly and people have perhaps been unhappily married, but happily divorced.

NE:

Yeah absolutely there is always the happy ending stories where people conscious uncoupling. They may not have worked really well together but once they have separated, they have had a great co-parenting relationship, introduced new partners, and really positively co-parented their children and much happier. We have had cases where during the separation process people have reconciled and got back together and lived happily ever after.

AD:

Do you sometimes find it difficult that, and I am thinking of some movies and popular culture that centre on divorce, and they often do paint lawyers as the bad guys in the situations that it’s almost like have got two people who just want to go their separate ways and then it’s the idea is that you have the lawyer coming in and being like how dare they try and take that from you, that’s yours. How frustrating is that in your job, when you are there trying to help people resolve this as peaceful manner as possible?

NE:

Sometimes it’s hard, but I think if you know the lawyer on the other side, that is always really valuable to pick up the phone and have conversations, try and deescalate the situation as best you. As family lawyers yes you are there to litigate sometimes but ultimately you are there to try and help everybody resolve something in a way that works for everybody so that they can move on.

AD:

After everything that we have talked about today, about the situations where things can go wrong, and plenty of things can go wrong, I want to end by asking do you think people should get married? Do you believe in marriage?

NE:

Yeah, look I think as a family lawyer when you see, day in and day out, the worst of people you have to believe that fairy tales do exist and there are happy endings, so absolutely. Life’s short. From my perspective you still want to believe in love and happiness and that things can work out.

AD:

Nicole that’s all been so helpful and often what I can imagine is an incredibly stressful, probably one of the most stressful times that people will ever go through in their life is making the decision to get divorced and I think you have really helped navigate that system and show that there, even if you’re happy ending isn’t with your now ex partner, there is still and opportunity for a happy ending for your life, so thank you so much for joining us.

NE:

Thank you.

What you heard in today’s episode is not intended as a substitute for legal advice from a qualified professional. I am not even a lawyer – remember, so if you are looking for legal advice based on your individual circumstances head to lawfullyexplained.com.au and find the solicitor who is right for you.