WITH one in three marriages ending in divorce, learning more about what the process entails and how to make it easier, ahead of time isnt pessimistic its realistic.
Happily married? Think that divorce and separation happens to other people? So did the 30 per cent of married people who are now divorced at one stage. In other words, no matter what you might think now, statistics say that divorce could happen to any of us in the future. And that makes arming yourself with some knowledge ahead of time a smart move. Think of it like an insurance policy. We spoke to Judy Hogg, senior partner in Melbourne-based law practice, Hogg and Reid and author of Splitting Up: The essential guide to divorce and separation in Australia for some advice.
Tip #1: Remember, there’s only one ‘grounds’ for divorce. And neither adultery or ‘I can’t stand his mates’ fits the bill. “I think what constitutes a reason for divorce is still something that isn’t well understood,” says Hogg. “People believe there are any number of reasons why a divorce will be granted, many of which are ‘fault’ based or about being punitive, or penalising someone.” It’s probably a hang over from years gone by when, under the Matrimonial Causes Act there were 14 grounds for divorce (including adultery, drunkenness and even imprisonment). “Today, under the Family Law Act there is only one reason a divorce will be granted – that the marriage has broken down irretrievably.” How do you prove that? Read on.
Tip #2: You have to spend at least 12 months living separately: So those quicky divorces you’ve read about? They’re a myth. In fact, living separately for 12 months is the only way to prove that your marriage has broken down irretrievably, and you’ll need to do this before you file for divorce. And by ‘living separately’, it’s not just the physicality of the situation that’s taken into account – there also needs to be a separation, or a deconstruction of the relationship that existed during marriage. So it’s no good moving into separate premises, but continuing to write letters to each other, proclaiming ever-lasting love and a desire to be back together.
Tip #3: Forget the clichés and hire a lawyer. No matter how nice to each other you think you’re capable of being, or how mutual the decision to divorce is. “It’s certainly possible to get divorced without legal advice,” says Hogg. “But you can wind up making things more confused, messy and in some cases expensive than they need to be.” Not to mention missing important details, deadlines or not understanding all the paperwork required. And without impartial advice, there’s always the risk of letting your emotions creep into negotiations. But don’t just pick any lawyer or the one you used when you bought a house – you need to make sure the lawyer you choose is experienced in family law.
Tip #4: Ditch the anger. “Which can be incredibly hard to do,” admits Hogg, “particularly if you’re the one who has been left, but the more angry people are, the more likely it is that a divorce will become difficult and unnecessarily ugly.” So sending offensive emails or spreading nasty things about your ex is never a good idea. Period. “Anger not only stops people moving on, it stops them from behaving rationally and can quickly alienate friends and family. I encourage people to see a counsellor if they need to work through the anger or hurt, and to use those sessions to explore those feelings, rather than when they’re dealing with the practicalities of the actual divorce.”
Tip #5: Don’t let ‘guilt’ ruin your future. If you’re the one who wants out, don’t fall into the trap of agreeing to give your partner everything just because you feel guilty. “I see this happen quite often,” says Hogg. “One partner feels guilty and argues for or agrees on a settlement that is unfairly swayed in the other person’s favour, instead of thinking about how that will impact their future, and any new relationships. Be guided by your lawyer and their advice about what’s a fair settlement – that’s what you’re paying them for.”
Tip #6: Married for less than two years? You’ll have to ‘work’ harder to get divorced. If it turns out that the date of your application for divorce is less than two years after you married, you’ll also need to file a certificate from an approved counsellor, which states that you’ve been attending marriage counselling.
Tip #7: A lawyer isn’t the only person you should seek advice from: “At the same time as approaching a lawyer for help, people should also see a financial planner or their accountant, to discuss how this will affect them financially,” says Hogg. “I’d also advise having the house valued as soon as possible to get a true estimate of what the property’s worth, rather than just banking on the fact that, once the proceeds are split, each of you will be able to buy another house – it’s better to be realistic than disappointed. And talk to Centrelink and the Child Support Agency as soon as possible to see what you may be entitled to as a single parent.”
Tip #8: Sharing the children 50/50 is hard on everyone: Hogg says that when children are involved, what will happen to them is what parents fear most about getting divorced. “People often say ‘I’m not going to see my kids growing up’, and it’s a heart-breaking thing to watch them struggling with. But I’d also say that realistically, trying to share children so that they spend half their time at one parent’s house and half at the others just doesn’t work well, no matter how good the intention. A child isn’t a piece of cheese and can’t be split like that. Above all, a child’s best interests are the paramount concern and that’s what the law does – puts the children first.”
Tip #9: Proving a de facto relationship can be harder than you think. Particularly if one partner decides to be ‘crafty’ about it. Think about it – with no marriage certificate and in some cases, no official ties between each other, it has been known for some people to successfully deny that a relationship ever existed, or at least fudge the dates surrounding when it began. Hogg says she’s seen it all: “I’m probably quite cynical, but never underestimate what people are capable of! This is where a financial agreement, the equivalent of what’s called a pre-nuptial agreement overseas, can be particularly useful. In lieu of that marriage certificate, apart from anything else it will clearly define when a de facto relationship began.” In some states, it’s also possible to formally register a de facto relationship – contact your state government for more information.
Tip #10: When you’re ending a de facto relationship, make it official. While you don’t have to apply to be officially divorced or released from a de facto relationship, if you plan to (or think there’s a chance that you’ll have to) deal with a financial issue as a result of the separation through the court system, then it pays to have some formal acknowledgement of exactly when the relationship came to a close. Why? Because you need to sort or contest any financial settlements within two years of the relationship ending, so having when that occurred in writing can be important. Ask a lawyer to draw up a letter that confirms the date of separation.
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