By Jessica Coles-Black

 

Separating or divorcing from your spouse is one of the most stressful and emotional periods in a person’s life. There are often many moving variables to consider whilst trying to finalise your separation. It can be slow moving and argumentative or quick paced.

Aside from dealing with the emotional toll of separating from your former partner, you need to consider how each parent should spend time with the children? What is a just and equitable property settlement? How do I achieve the best outcome for the children and yourself?

Stowe Family Law, a leading family law firm in the UK, provides a list of the 10 most common divorce mistakes.[1] The list readily applies to Australia and includes:

1. Not getting a legally binding agreement or court order

Settling your property between yourselves, without formalising your agreement by way of Consent Orders or Binding Financial Agreement, could result in you or your partner seeking a further property, spousal maintenance or superannuation at a later date.

2. Lack of financial planning

It is all well and good to agree to say a 60/40% split in your favour, but what does this mean in terms of practicality? Are you including both of your superannuation? Are you able to re-finance a property and pay-out your partner?

3. Re-marrying before resolving your property settlement

Aside from potentially making your negotiations with your former spouse more difficult, you cannot marry someone else until your divorce order has been made. If you commence a de facto relationship whilst your property settlement is ongoing with your former spouse, you are at risk of including your interest in any property, such as houses or bank accounts, that you share with your new spouse.

4. Agreeing to a higher property settlement to offset child support payments

Whilst the child support payments you make or receive are a consideration under section 75(2) of the Family Law Act in property settlement cases, you can only negotiate to receive a higher lump sum payment from your property settlement in lieu of less or no child support payments, if you enter into a Binding Child Support Agreement, a legally binding document.

Otherwise, if you do not enter into a Binding Child Support Agreement, you and your spouse can still be assessed by the Child Support Agency to pay child support, regardless of what informal agreement you have in place.

5. Discussing your separation or your ex-spouse with your children

Conflict in your marriage or relationship can have a detrimental impact on your children. Please see our blog to understand how conflict can affect your children:

https://www.rowanskinnerlegal.com.au/child-custody/parental-conflict-in-marriage-effects-on-children/

6. Believing that you can change your ex-partner to not continue to be unreasonable or difficult                                                             

7. Taking legal advice from friends and family

Whilst almost everyone knows of someone who has separated or divorced, it is important that you do not take legal advice from your friends and family. The circumstances of their separation are limited to their experience and will certainly not apply to your situation.

Instead, we suggest you seek emotional and social support from friends and family during this difficult period of your life.

8. Believing that only your friends and family can see your social media posts

It is important that you do not post, text, email or do any other form of written communication which you would not like to be before the court in the future. Whilst you may delete posts or texts, they often have a way of returning unwanted in court proceedings.

9. Initiating proceedings straight away

Litigation should always be a last resort. There are other options to negotiate with your ex-partner, including Family Dispute Resolution or private mediation. Please see our blog on when to mediate or litigate:

https://www.rowanskinnerlegal.com.au/financial-matters/should-you-mediate-or-litigate-family-law-property/

10. Running your own property settlement or parenting matter case

Negotiating property settlements and parenting matters can be incredibly complex. It is important that you seek legal advice to understand what is required, the court’s considerations and what your entitlements are under the Family Law Act. 

In addition to these great 10 tips, we say that there is one more important and common mistake you should not make:

11. DO NOT contravene court orders

There are a wide range of penalties available to the court if you are found to have contravened an order.

The recent case of Kalant & Jordain[2] involved the Court finding the Mother had contravened interim parenting orders on three separate occasions.

The contraventions involved, the Mother failing to attend a Family Report appointment, failing to make the child available for the Family Report appointment and failing to make the child available to spend time with the Father.

The Court ordered the Mother to serve an immediate 14-day term of imprisonment, reasoning that the more serious contraventions of the Family Report appointments caused a substantial delay of the trial.

Unfortunately for the Mother, the story does not end there. The Mother, at the time of contravention, was on two bonds for ten separate contraventions that occurred earlier. The Court ordered a further 14 day suspended jail term for breaching both of her bonds, provided she enter into a third bond.

References

[1] https://www.stowefamilylaw.co.uk/blog/2021/07/14/what-are-the-10-most-common-divorce-mistakes/?utm_source=Stowe+Family+Law&utm_campaign=883e98917e-RSS_weeklyEMAIL_CAMPAIGN&utm_medium=email&utm_term=0_326c5d6c7c-883e98917e-15250275&mc_cid=883e98917e&mc_eid=04b16d06a9

[2] Kalant & Jordain (No. 3) [2021] FamCA 191 (9 April 2021)