Separating and Staying Sane (Not Involving the Courts)

Happens, the Divorce Down Under podcast where we talk about and everything family law related.

Welcome to Split Happens, the Divorce Down Under podcast with me, Alex, and my fellow family lawyer, Liza. Hello! Liza, I thought we would talk today about separating and staying sane, by which I mean getting things resolved without going to court. You and your partner, things haven't worked out. Now what? Well What do you do? What's the first thing that we might do? I'd pr I'd probably call my mum. Yeah. I I'd I'd call a friend or or a brother or a sister or something. A great channel.

Yeah. So the very first step before you even th think about lawyers and all that sort of stuff is Get your village together. Possibly before he even separated. Oh yeah, most of the time. Talking to your friends, your family. And I'd probably ring my bestie Stace and she would be up here in in no time and we'd be on the wines and having a chat and working out a bit of a plan. So that's pr that's that's what I'd be doing. Start to put your village together.

Yeah. We'll click we'll keep using that expression over this episode and the next one as well because it that village is super important when you're going through these processes. Yeah. We we're not we could. There could be a song, there'd be a video to watch out for that later, but not this afternoon. So Family, friends, and I would throw into that mix The professionals in your life as well.

That'll be the next step. So after you've spoken about it with your friends and family and you've worked out what that that's what you're actually gonna do. Yeah. I'd probably go. Yeah. and talk to my accountant, make sure like just See what's what to do. I talk to a lawyer, I talk to my bank. Um They're probably the three main my starting points I'd probably go to first.

I needed some you know emotional support and you know, something a bit more yeah, deep than you know, than a than a pint in a pub with a mate, yeah. I'd probably be thinking You know, I might go to my doctor and get a referral. Yeah. Just to get a psychologist. Just have somebody I can talk to in a safe space. Yeah.

And we we don't live in the world that we used to live in sort of twenty, thirty, forty years ago when the people are sort of frowned upon for that. It's really a it's a measure of strength to go and get the support you need. Yeah. So add those people to your village. It's n there's no one sort of pattern fits all'cause everybody's so very unique. But your friends and your family are gonna know about the separation sooner.

You wanna have somebody on board and Hopefully, if it happens to you, and I hope that it doesn't happen to you, but if it does, then you're able to build a relationship with your ex so that you can work through the things you've got to work through legally.

Yeah. Well I think um that's sort of segues into where I would go next, which is that coming up with that plan. Yeah. Okay. So I mean this could be a plan that we're gonna scribble on a piece of paper. It could be done at the kitchen table. I've seen that plenty of times. Yeah, well it happens and it sometimes it happens be even before you've formally separated. You sort of sit there and you're still living together, you go, Look, this isn't working.

Um, look, I think what we might do is we'll split it this way, we'll do it that way. You just sit down, you you jot down a few ideas. Sometimes those things can work. It really can. And if you are lucky enough to be able to have that difficult but cordial kitchen table conference and you come up with a piece of paper and it's got you know, you keep and and they keep a list.

You you know, you're ninety percent of the way to getting your your your case sorted out legally before Any anywhere approaching a court process. That's right. really want to ki we we emphasise this a lot as family law practitioners, I mean a lot of our work revolves in the before court space trying to encourage our clients to get things settled, do things amicably because the emotional and the financial cost is can be overwhelming sometimes.

And it's always better for a person to be able to make their own decisions. We've now got yeah that Coca-Cola's coming back, I can tell. If you do end up with that sort of little kitchen table agreement yw'n ei wneud yw'n ei wneud yw'n ei wneud yw'n ei wneud yw'n ei wneud yw'n ei wneud. So that's it's right. And if one of you wants to keep the house, for example, and the other one's going to buy you out, that's if you turn that kitchen table agreement into a a formal family court document.

Like a consent order or a financial agreement. then you'll save having to pay stamp duty on the transfer, which is worth thousands, tens of thousands of dollars sometimes. Make a little plan and turn that little plan into a formal arrangement and off you go into the wide blue yonder. Even even if you have um

Being able to just narrow some of the issues. You don't really know whether or not it might be you say, Look, I really want to keep this house if we Um, and having those intentions and those interests shared at that early stage before things get really nasty, um, and you know, there are plenty of cases where it might already be nasty, but we're talking about those situations where you know. Parties are okay to have that.

with each other um freely and and easily and it may be that um you go, right, well let's go off and we'll go and talk to a broker. There's also um financial planners who can really help out there. So say for example The couple might have a range of different assets and they don't really know what to do.

Um, and so there are plenty of financial planners out there, for example, who will sit down with a couple, even though they are separating, and say, Well, here are your options. This is what you can both afford. He can afford to pay you out in the sum of X amount of dollars and, you know, transfer all these other things to you. Um, she can afford to pay you or here's option C, which is

You know, have to sell everything up and divide it. Yeah. Like they don't get into the nitty gritty about the um family law like when we talk about entitlements and what the percentage actually works out. Just a a mar an arithmetical exercise. That's right. Seeing what your options are because sometimes people go

Oh, I really, really want to keep the house. But they may not be able to afford to keep the house. So what is the point of going through that whole exercise of trying to keep the house and paying them um out? Because th we if you keep the house, it usually means that you've got to pay them Yeah. It's taking over the mortgage. A chunk on top. It's not just oh I keep the house, I'll take the mortgage.

I look I've seen some cases where the mortgage is almost at the same value of the house, so taking the house and the mortgage doesn't mean means that they don't have to pay too much, but the point is it Still, um you need to get proper advice on that. So Yeah. Yeah. Always a wise move to do it earlier on when you're both agreeable. When you are trying to get to a quick accommodation, yeah. Yeah.

So You are living together at this point? Yep. And we see this a lot in our university of applying for divorces these days. It's not uncommon for couples to have been living together or separated, I should say, under the same roof for quite a long time. Oh,'cause it's so expensive and it's really hard to get a rental. That's the Very tight remote mark. It is just it's the practicalities. People want to leave.

They w they want to leave and go, but they have nowhere to go. Um, I have quite a few cases where parties are separated, living under the same roof, they can't really do anything until such time as they actually agree. on on the actual uh pr uh pull and who's gonna get what and how that's gonna what that's gonna look like. Mm. Sometimes the banks or they they their refinanciers won't do anything till the orders are made or the agreement.

That's right. They need it then a lot of them will actually want it to be something a little bit more concrete. Yeah. They'll want if it's a financial agreement, I've got one at the moment where the um bank wants the financial agreement signed, not so much by my client, signed by the other party because they they're just not sure. Mm. So they're not releasing the funds until

They weren't well you can kind of understand it from a bank's risk point of view. Yeah. But it does mean that people are sort of having to stay together Under that one roof and Yeah, with a green tape dividing the house in half or whatever it is that they And it always gets worse from that point on. So you you know, you've you got in your head, you can't stand that person anymore. And then every little thing that they do is going to drive you even more and more insane.

So, um you see these things and um I had a a case once where Wife would play music. Um and it probably was fine. That that was probably okay when they were together. It probably annoyed him. A C D C two I might be a little bit. Yeah, but but now that they're broken up He's like, Well, no, I actually don't like how she plays the music and all this sort of stuff and it's really affecting me and and and I'm thinking, Oh my

You know, and so this is these are the sorts of things that happen all the time. So and then it leads to more and more conflict. So the sooner that you can try and resolve it and get out of there and physically separate, the better. I mean, how long do you think you could be separated under one roof? And I mean, I'll throw my head back into the misty past when I was separated.

And I was the person that decided I I'm done with this, I'm I'm finished. And mentally I think I was separated under one roof for a number of months. Um Yeah. I chose to sort of end everything on the day we got back from a holiday on purpose. Yes. I can't take this anymore. I can't can't resume. Packed my bags into well, packed my bags, packed everything into a black polythene bin bag and and off I went. Enough of that.

Well that's what you that's what you packed though, is what you need, isn't it? Yeah, and what you need is the thing. It's not what do you want, is it? Because you just s as you were just saying, it'd be nice to keep the car, it'd be nice to keep the house. It'd be nice to keep keep keep keep keep. But frankly, the other person's gonna be have an entitlement to some of that. So sit down with a sensible person. Yeah.

And think what do I actually need right now? Just for the short term. What do I need? I need somewhere to live. I need an income to be able to pay my bills. And if you've got kids, I need to be able to look after the kids. And I'm assuming that in with the cases that we're talking about here, we're not talking about elements of harm or domestic. We're just saying look, the kids are gonna need the other parent in their lives.

What does that what does everybody need for the short term? Just make some short term arrangements. And don't rely upon the things that other Happen around you. You've always got the next door neighbour or or the friend or the friend's friend or their brother or their cousin's neighbour's dog who've had this happen to them and therefore you should be entitled to insert random percentage of whatever here. Because everybody's cases are so very different.

So Oh I know. And everyone's gonna have a different opinion of what your case is too. Go back to your village and get a little bit of um good legal advice at the very start. You you a lot of family lawyers will offer you, you know a gwaith ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud ymwneud That just gives you a flavour as to where you might be looking at and then I I would say it's worthwhile getting proper advice on the back.

Yeah. That'll might give you a flavor. Go and sit down, write everything down, prepare in detail what what your position is and then get some detailed advice. It'll be much more worthwhile. Yep. I you often say, don't you, that um Something's only worth what you're prepared to pay for it. So if you're getting absolutely free advice for hours and hours you've got to wonder whether there's any real I'm not talking about the community legal centres which are excellent.

Yeah. Yeah. We're busy practitioners and if you give us Most family lawyers are most family lawyers are absolutely run off their feet at the moment, so Yeah.

Yeah. Is that post COVID? I don't I don't actually understand what what it is. I had a look the other day, I was checking out stats. Um I was checking out stats for something. I can't remember what I was doing now. Might have been for a blog or something, thinking I've come up with some ideas.

And I noticed that, you know, Brisbane has the highest filing. It it takes up like twenty three percent of all of Australia of all the like filings and Just the number of applications, applications for kin even like Filing filing.

In a in a court, yeah. So applications for final orders, interim orders, consent orders, it takes out the gong in every single category. It doesn't matter across all the s like of all the cities. Like you know, you think about Sydney, Melbourne, the amount of people that are in Sydney and Melbourne. What is it about South East Queensland? Yeah, well it is now the known as the divorce hub. It's the it's the divorce day.

It's got the highest number of divorces, the highest number of applications filed. It's also got the the from what I've read is that the Brisbane um registry's been doing well. They've also knocked a lot of those on its head and finalised. Um, a lot of them, but it's incredible.

I wonder, I mean this is mere speculation, if you just drill down into those statistics you might find that there's been obviously there's been a huge amount of interstate um yeah transition uh transition over, particularly the post COVID era and Sometimes people have moved themselves and their problem to another state and the problem hasn't resolved. Well that's right. It's interrelation.

Well they say that the that the average rate, I think it's somewhere between forty three or forty four, up to about forty six, forty-seven is the age bracket for men and women. Um Women and men respectively I should say, um, that are in the prime for their divorce, you know, their divorce When they get the If you're gonna get divorced that's the night that's the everyday. You'll be in the with Alban Legal. For all your family law needs, call us on zero seven.

Or visit our website at arbanlegal.com.au. Now um that age group, funnily enough, is the age group that often has, you know, your youngish sort of kids or kids that are sort of like grade school. People mid career. And that is also, coincidentally, the same group of bac bracket of people who have come up from largely from Victoria post COVID because they were

tired of all the lockdowns and all the the bits and bo like, you know, everything else that was going on and and just the expense and cost of living, um, Sydney, Melbourne. And I read one time there was a Subtropic. It was a phrase that they were using and it was

It was it wasn't Brexit, but it was something like that. And it was sort of saying it was like for the Sydney Melbourne people because they couldn't afford to live and you know, it it's just ridiculous. You think about pricing and and so they all migrate up here and then They still hate each other so they just get divorced up here.

So that's what it is. It's it's a whole bunch of sort of people that have moved in order to split up. I tell you what that also leads us to. I know we're sort of getting a bit off point here, but it also leads to in parenting cases, those relocation cases that are so unbeloved of us family lawyers where we have to try and work our c work with our clients through that

You know, mum's in one state, dads in the other state, where ought the kids be? And those are very difficult cases and all of those turn on their own facts. So I'm I'm I wouldn't dream of giving advice and apologies. Anyway, let's go back to uh you've separated scenario. So and we're trying to keep people out of court with this conversation.

I'm gonna say try and stay away from things like social media. Oh don't get your advice from Professor Google. For goodness sake. Take a step back from all of that. Don't buy into the poison. And don't say anything unpleasant that you wouldn't say in front of a judge or or in front of your mother. I read um on on Facebook there's a page that I follow, the Gold Coast community page, and sometimes it's quite funny.

So sometimes there'll be someone who puts something very serious up there and you read it for the comments. You know, and whatever you do, don't follow the advice of all these other people who are putting their two bobs worth in on Facebook. Everyone is an expert. Oh, I've done this and my neighbor did this and my cousin did this, and you know, um your situation is going to be very different. one of the things that you have to be very careful of, um, is that with social media is that it's

Not temporary. It's not it's permanent and you don't know who's seeing it and you don't know It's deleted, but somebody screenshot that and that's but still it's still on the server forever. That's right. So um be careful what you say, be careful what you post, be careful um what you're saying about your kids as well. You know and But you don't want them to get dragged into any unpleasantness. No, that's for sure.

So and is then the moment you change your status on Facebook from, you know, in a relationship or married to it's complicated, you're gonna get bombarded with questions. So Yeah. Well, I don't know really, because I'm not much of a user of the old... I'm on store book twenty four seven. Oh so I'm I'm just full of all the selfies and whatever else.

I don't need I don't need to know what a colleague I used to work with thirty years ago has had for breakfast that morning. It's it's it's a very limited appeal. But all I'm I guess I'm saying if you're going through the separation process, don't go posting anything. If you can't say anything nice, probably best not to say anything at Yep, that's right. Think about um We we have the law of defamation and you don't want to go down that path, I assure you.

If you wouldn't say it out to somebody in public, then don't say it on the on the main Now, sometimes relationships have that sort of that shadow which I alluded to a minute ago of domestic violence. Some kind of an imbalance of power between people? So our message is always gonna be if there are any elements that of of safety for you or the children, that's your priority. The number one priority. Money is just money, property is just property, but you can't be replaced and you

If you're fearful at all, the police are there for issues of safety when it's a direct threat. Otherwise, we have DV Connect here in Queensland and I thoroughly recommend that you give them a call if you want. Yep. Come back to our property settlement couple. Mm-hmm.

big piece of advice and sometimes it doesn't go in for the first occasion, it might take a f it might take a couple of solicitor's bills before the message sinks in. Yeah. Which is be commercial. Oh, good luck with that one Yeah. You are dealing with emotionally charged people with in a heightened state of anxiety who are at the worst time of their life.

I love it when I sit there, um, and uh there's a mediator in particular. He always talks about these, you know, trying to keep the emotions out of the room and all and I as a media I do the same thing and I try my hardest. But you look at your client and you go, They are not listening to one word I say. They are still emotionally driven. They're not going to give me one inch. Um, they're not changing from their positions.

Oh my goodness. Um, I get it people, I do, but at the end of the day it is only money and you will make it back and you will have your freedom and you will have You'll just you'll have that time that you don't have to worry, you don't have to lay at night going, Oh, I wonder what he's thinking or what she's gonna do next or you've moved on, you you're starting that new chapter, it's exciting, it's a good time. So My message is that great. Life wrapped up as quickly as possible, really.

Be commercial, I tell you what. Be really. It's um it's very difficult to get through to people and we we can only guide our clients. You can't just hold their head and and sort of go, Right, come on. And as a pointer for somebody who's who's not using lawyers, because we're trying to keep them away from expense is Just put yourself in the other person's shoes for a while. Look at the universe through their eyes and have an idea as to what they might need.

why th why it might be that they're hanging on desperately to the idea of the house. Maybe they're gonna be the primary care of the kids because you work away. Who knows? And they're f they're afraid. And fear is usually a big driver in these things. But I do think it's helpful to try and think, well what does the other person want? Try and do that. It's very difficult, I get that, because you're angry with them. There could be some all sorts of unpleasant.

There's another trick too. If you've got kids Think about it from their perspective. Think about uh how they how they are looking at this holy Are they looking at it from the perspective of, Oh God, my parents hate each other? You know, they can never get along, they can't see y you know, they'll they'll never be able to everything's uncomfortable for them. They they will have anxieties themselves. They'll worry, they'll they'll stretch.

think about it from their perspective. If you remove all that worry and that stress for them by just simply being courteous, being commercial, all these things You're actually doing your kids a favor. If you look at it from your kids' perspective, not your own. You're a parent now, you're an adult, you're just But do the right thing. Grown up. Be a grown up. One of you two. Don't involve them in it. No. It's desperately unfair on the Anyway. Yeah, good good advice generally that is.

Right. So you may end up in a negotiation though with your ex. And it isn't quite over the line. Just just these couple of things you can't agree on. Mediation. Mm-hmm. Really don't don't rush off to court and say that's it, can't do it. You should always try and fix it yourselves. And the best way to do that if you can't do it directly is to use a mediation service.

Now, you can either contact a family lawyer who'll arrange that for you or you can contact somebody like Relationships Australia or there are plenty of mediation services that are popping up now where they're doing it directly. You don't have to take a lawyer with you. Can be can be helpful if you do, if it's a complicated case, so that they can draw the documents up for you there and then.

But you can have your settlement documents prepared later. If you get an agreement at mediation and you both walk away and you've signed up. this agreement go off and one of you instructs a lawyer, you might agree to share the cost of fixing that up. But I I would I mean I would say this, wouldn't I?'Cause I'm a legal practitioner, but there is some benefit in having a professional draft up the documents for you.

And that doesn't mean going to court, it just means getting the thing done in a very detailed line. And lots of lawyers do fix fees and things like that. So you can actually know you've got some certainty. Um if you're going to do a consent order, for example, remembering a consent order has to have the br it the approval from the court. So if you're going to do that, it's really important that the orders are drafted in a way that the court is most likely going to approve.

if it's just been done and this is no disrespect to anyone out there, but, you know, the courts have their way of drafting of of putting out orders and Um people have their own way of drafting them and often the two don't meet up. Sorry. Just gotta be careful.

The people that are making the orders ultimately would be the registrars that are looking at these things on paper. And they are all lawyers. So they are expecting it to be in a lawyerly expression. Doesn't mean it has to be massively complicated, but it does need to be coherent, it does need to be properly drafted. Again, I would say it's generally a good idea that a professional drafts those orders for you. Not always. I have seen some well drafted ones.

Yeah. Uh but I have also seen the ones that have been cut and pasted from obviously friends or neighbours or brothers or cousins, other court cases and there are provisions in orders that have nothing to do with what's going on. You think uh that needs to be chopped out. Yeah. So you can do it yourself, but I would generally recommend engaging a you know a private lawyer that you trust to do that for you.

Then you've got your your outcome. You've you've got your settled outcome, you've got your orders made. The next step Well it sounds simple, but you've got to implement them. You've got to actually put the the you know the deal into motion. And that's that's usually the point at time when you should already have been go back to your village, you'll have been talking to your mortgage broker, your financial advisor, your banker, your accountant.

Making sure that whatever deal you're going to write down and be bound by, you're capable of fulfilling. So you should make sure that you know what your borrowing capacity is before you go and agree, Oh yeah, I'll I'll pay you out and I'll pay I'll pay off the mortgage and I'll pay you out. Only then to find out that within the sixty days you've got to do that, you can't raise the money. That's right. Happens a lot.

Or you could be in a situation where you've need to get a conveyancer to sort out the transfers. Because it's all Pixar. What Pixar? Pixar? Pixar. Pecar. There you go. Obviously I do not have nothing to do with conveyancing because I'm still pulling the Pixar. That's that's the cut. I was gonna say whereas you you do still have quite a lot to do with Pixar animation. Yeah. Bye.

But again, getting your ducks in a row beforehand so that you're having your your conveyances are set up. Yep. You've got your mortgage refinance in place, ready to go. Or if you're going to be the person receiving the money, you've got some advice around what you should do, what's your plan? Are you going to put that down as a deposit? Have you been looking? Are you going to take some time time away? Are you going to move it to the rental market for a bit? Whatever you do. But have a plan.

Yeah. Yeah. It'll be a release from thinking about the emotional side of things if you're making like almost a business plan of your financial future. And I suppose the last thing I'd say is you're gonna be moving off into that sort of that that new blue yonder you. And you might want to make sure that you've covered your estate plans too. Yeah, that's a good question. Updating your wills, your enduring pattern.

things like that. So that's not for us as mere sort of humble jobbing family lawyers, but although we do practice in those areas too. Something to do at the end of uh of your resolution. So look. Maybe something of an overview of a pathway to keep away from court. We will do another episode, I think.

Which we'll deal with well, what happens if you can't keep out of court and and how does that all go. But for today, um thank you very much for listening to Split Happens, the Divorce Down under podcast, with me, Alex, and my colleague Liza. Thank you.