There’s no doubt 2020 has been a difficult year. I don’t need to state the obvious or recap on what everyone already knows.
I personally know how hard 2020 was for many people because in the latter half of 2020 my practice has been really busy and many other family lawyers in Brisbane and on the Gold Coast have told me they are in the same boat.
My belief is that as family lawyers we are in the business of “damage control”. Our role is to help minimise the inevitable damage relationship breakdown creates financially, for children, in terms of our society, and I think many of my colleagues would feel the same way. It’s understandable that people feel cynical about lawyers and the law, it’s confusing, expensive and painful.
Prevention is better than cure
One of the first things any good family lawyer should discuss with you is prospects for reconciliation.
Frankly this is the best resolution possible. No legal fees, no halving your net worth, no seeing your children according to a schedule.
It’s better for society as well. Children grow up to be better adults in homes free from conflict with two parents, the social security system is less likely to be called upon and people typically live longer in happy marriages. That’s not to say that anyone ought to put up with a toxic relationship either.
There are many very talented Marriage Counsellors available to help reconcile a marriage or relationship and typically their services are more emotionally rewarding and (significantly less expensive) than the services of a family law solicitor.
The Family Law Act 1975 also mandates that lawyers have a responsibility to help people resolve their issues before moving to what the lawyers do, which is sorting out the separation. Section 12C and 12E Family Law Act 1975 require lawyers to provide information regarding reconciliation services.
The often cited and well-known quote from Abraham Lincoln applies here as it does in every area of legal practice:
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
Getting a Divorce
Since 1975 there is only one ground for Divorce in Australia which is the irretrievable breakdown of the marriage evidenced by a period of 12 months separation.
Before this there were various grounds such as “adultery” etc that made this difficult area even more emotionally charged when it was required to establish fault by one party. On the other hand, some people may argue the current system makes it much easier to obtain a Divorce or encourages Divorce. However, the Family Law Act 1975 also provides that the principles to be applied by the Courts in exercising their jurisdictions must have regard to, inter alia (Latin for “among other things”):
- The need to preserve and protect the institution of marriage as the union of 2 people to the exclusion of all others voluntarily entered into for life.
- The need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children. (see section 43(1)(a) and (b)).
Section 50 provides some practical encouragement for people to be able to separate and get back together for a period of time. This section says that if a separation occurs, and the parties get back together (maybe to try and work things out), they can be back together for up to 3 months without having to “start over” on the 12 months continuous period of separation.
For example, Romeo and Juliette decide to separate. They separate for 6 months then decide to get back together. They get back together for 2 months until Juliette realises Romeo just isn’t the same as he was 20 years ago, and they separate again. Juliette would still be able to apply for a Divorce after another 6 months and the 12-month period would not reset.
In terms of separation, this is a more complicated area of law than you might imagine. Section 49 of the Family Law Act specifies it only takes one party to the marriage make the decision to separate and that separation can involve people being
Getting a Divorce is typically the final step usually the easiest and less complicated step speaking strictly in terms of the process. Emotionally it may be the most difficult.
A Divorce is simply “the termination of a marriage otherwise than by the death of a party to the marriage”.
So, while many people may use that term to describe issues such as property settlement, parenting arrangements, spousal support, child support etc, the Divorce process only terminates the marriage.
All those big words
One of the interesting things about family law in Australia (and dare I say in other countries as well) is the different terminology different people use to describe aspects of the family law system.
Reason for this include the legislation changing the terminology over time. For example, in litigation involving children originally the terms were “custody and access”. In 1996 these terms were reformed to “residence and contact” and then in 2006 the terms changed again to the current “lives with and spends time with”. Nevertheless, in my experience very many people still talk about getting custody. Another reason for this (in my opinion) is that family law seems to be an area where people offer each other “barbeque advice”. This is the situation where someone knows someone who “went through a Divorce” and at a social function will provide information based on their experience as to how the system works.
The reason why all of this is relevant to the topic in the heading is because people often seek information regarding a Divorce when in actual fact a Divorce is just one aspect of a multifaceted system.
If separation is inevitable you probably need information first and foremost. Family Law is incredibly complex and nuanced, and no lawyer can tell you what the outcome will be (ever). The more information we have in terms of the evidence the closer we get though.
Ultimately though our role is to help you to get you out of this situation with as much of your wallet, dignity and relationships intact as possible.
Family law advice
If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Family Lawyers can assist you with practical advice.
We are family lawyers servicing all areas in Brisbane and on the Gold Coast.