Learning from Tom Cruise

Depending on your taste in movies and television shows than maybe there isn’t much to be learned from Tom – after all he is responsible for Days of Thunder.

But in the world of celebrity divorces Katie and Tom reached a settlement in the blink of an eye. Could skipping the drama and signing the papers be the new trend?

While a TomKat-style quick settlement doesn't get reported on much, it does happen. And there are many benefits to settling quickly and efficiently:

You’ll have more money: A less drawn-out process will minimize the legal fees, which means more money for you, your ex and, most important, your children. Heading into your new life with as many resources as possible will be beneficial to your family.

It’s better for the kids: A quicker settlement is always easier on the children. They don’t want mum and dad battling it out. As much as you will try to hide it from your kids, you are bound to show some pain or stress if it’s a long process.

Your new life will begin quicker: There’s something about those three words — you new life — that seems quite inviting, doesn’t it? You can get to your new life right away with a quick settlement. On the flipside, being single again might be a difficult adjustment for you, so why not get started sooner than later because you will flourish once you get there.

You’ll have less stress: I am not the first to say this, but stress is a killer. Ending a breakup or divorce in the easiest way possible will afford you the opportunity to avoid additional drama and stress. Sure, you might feel pressure starting a new life as a single parent, but arguing is a whole different kind of stress you don’t need on top of all you’re already dealing with.

Dads

Family law often makes the headlines – sometimes for tragic reasons (such as when harm has befallen a child) and other times as a means of a mirror on society (such as when the latest divorce statistics come out). Recently two articles on SMH.com.au caught my attention as they reflected on family law at a more personal level – both on the topics of dads.

The first article (by Sarah MacDonald) asked the question “Do men become better fathers after divorce?” The author of the article reviewed the changes that the Family Law Act has gone through in the past 5 or so years – including the Shared Parental Responsibility Act in 2006 which brought about the presumption of ‘equal shared parental responsibility’ and encouraged at least the consideration of shared care* wherever practicable and when in the best interests of the child.

In what is a very balanced article, the author discusses the problems that have been revealed since the 2006 changes including the stress it can put on some children (particularly young children), that parties with significant personal conflict struggle to manage these complex arrangements, and that such arrangements can be proposed in order to avoid or increase child support obligations.

However, the author also points out that there are many parents who are able to share the care of their kids after separation. And that such an arrangement can offer great benefits to both the children and the parents – such as the child can see both parents undertaking tasks in and around the home and see both parents in paid external employment and the child receives love and attention from two people readily engaged in their day-to-day lives.

The author went on to highlight the change that this can bring about in terms of the role that the Dad has played in the family structure prior to divorce or separation: 

“Couples break up and understandably many fathers can’t cope with the thought of only seeing their children every second weekend.  They argue for and often achieve shared care with weeknights included.  Not surprisingly, they then find to achieve this they have to cut back on work hours, or work more flexibly.  Suddenly they are at the school gate, at sports training, helping with homework.  It’s in some ways fantastic but in others frustrating.  I’ve had many women tell me that after divorce their ex ‘finally became the father I always wanted him to be’.”

In short the article spoke to the best that can come out of marriage or relationship breakdown – that the family stays intact ... a different configuration for sure but intact – indeed, blossoming – nonetheless. The separation was undoubtedly a challenge but also an opportunity.

The second article was by Sam de Brito (who has a young daughter whom he shares care for with her mother). In the article entitled “Defeated Dads” the author speaks about a movie (‘For Ellen’) that tells the story of a Dad who essentially blackmails his ex into letting him see his six year old daughter. The interaction between the child and her father during this visit cuts straight through to one of the most essential parts of post-separation parenting ... just showing up: “At one point Ellen asks Joby why he didn't come to see her before now and he waffles on about his heavy metal band and a record deal and his desire to succeed as a musician."I wanted to make it so bad," says Joby. "Have you made it?" asks Ellen.”

Sam goes on to reference some research that has been done by the Australian Institute of Family Studies into why fathers lose contact with their children after divorce – which quoted an older British and Canadian study that found “many men disengaged from their children for 'structural reasons (distance, repartnering) but also ‘psychological factors’ including 'grief, loss, role ambiguity, a sense of unfairness, concern about the potentially negative impact of divorce on children, the perception of becoming a 'visitor', and the 'pain of visits – their brevity, artificiality, and superficiality'." … A better, more accurate label for them might be 'Driven Away Dads'.”.

To the author’s mind the reason why some men can’t parent after separation is that it just hurts too much: “I get why some men would chose not to go there. It's just easier. If you don't see them, there's nothing to miss, the memories will dull, they become an abstraction.”

For me, these two articles highlight the “rock and the hard place” that the family law system tries to traverse – between respecting that children have a right to have a relationship with both of their parents, no matter (save as to safety) the different lifestyle or parenting methods of the respective parents, and the emotional and practical reality of post-separation parenting.

*shared care can loosely be defined as a child spending somewhere between 40-60% of the time with each parent.

"Divorce" - what is it? And why that's an important question for those in a de facto relationship.

Most often when people make an appointment to see me they say they want to talk about ‘divorce’. This is completely understandable because ‘divorce’ is a word pretty much all of us know. But in Australia ‘divorce’ has a specific meaning.

‘Divorce’ refers to the end of a marriage – or more specifically, the legal severance of a marriage. One day a Marriage Certificate provides the legal status of two people, then following the Divorce Order it does not.

Obtaining a Divorce Order is a relatively straight-forward matter (legally at least, the emotional side of things can be much more difficult). One, or both, of the parties applies to the Family Law Courts one year and one day after the date of separation using the Divorce Kit (available from the Courts) or through their lawyer and pays the Court fee. If only one party has made the application then the documents are served on the other. The application is usually heard six weeks later – the applicant is only required to attend if there are children under the age of 18; the other party is only required to attend if they are disputing something in the application – such as the date of separation. If the Divorce Order is made at that hearing it becomes absolute (effective) one month and one day after the hearing date and a certificate of the Divorce Order is mailed out to each of the parties.

However, a ‘divorce’ does not finalise all the legal matters in relation to the end of a marriage – it does not resolve the division of property between the parties (it also does not resolve the parenting matters but I'll talk more about that in another post).

A ‘property division’ is the finalisation of the division of the party’s property – home, cars, caravans, bank accounts, superannuation, furniture, mortgages, personal loans, and credit cards etc.

Most couples are able to reach an amicable agreement as to how their property will be divided – and they will save time and thousands of dollars in legal fees by finalising that agreement in a Binding Financial Agreement or Consent Orders. Such an agreement is reached either by the parties having discussions directly between themselves or with the assistance of lawyers putting together a proposal/counter-proposal until agreement is made.

But if no agreement can be reached then it becomes necessary to apply to the Family Courts for a judge to review the evidence (including the value of the assets and liabilities as well as the contributions made by each party to those assets and any future needs either party may have) and make a decision as to the division.

It is after a Binding Financial Agreement, Consent Orders or Court Orders are made that the assets/liabilities can be sold or transferred in accordance with the Agreement/Orders.

So why is the distinction between ‘divorce’ and ‘property division’ important not only for the end of a marriage but also for people in a de facto relationship? Well, it’s because while ‘divorce’ only applies to marriages ‘property division’ occurs not only at the end of a marriage but also at the end of a de facto relationship. That is, following the breakdown of a de facto relationship the parties have the same (or very similar) entitlements and obligations to property division as married people do.

Why waiting to resolve your property division doesn't work

Resolving property matters months or years after separation can be even more fraught with issues than resolving it soon after separation. This is because of the practical realities of property matters and how much a time delay can impact on these issues. For example: 

·        The more time that has elapsed since separation the harder it can be to locate important documents – particularly if you have moved house. Furthermore, many organisations, such as banks, law firms, and government departments, destroy their documents after seven years so the necessary evidence may have quite literally disappeared. This does not necessarily mean that resolution will not be possible but it will add to the time it takes to resolve the matter and certainly the costs;

·        If you and your former partner have obtained a divorce – perhaps because one of you wished to remarry – and more than 12 months has elapsed since that divorce order became final it will be necessary to obtain the consent of the Court to commence proceedings for property division or even to resolve your property matters by Consent Order.  Again, this does not mean that division of property will not occur but it will add time and cost;

·        Often after separation one party is left paying the debts of the relationship on their own. These ‘post-separation contributions’ can be recognised in any later division but they are not always recognised in the ‘dollar-for-dollar’ sense and as such the party making the payments may never receive full credit or refund for such contributions. And should there be a lengthy period of time these payments can quickly add up; and

·        One of the factors that the Court can take into account when ordering a property division is what we refer to as ‘future needs/future resources’ – and this means that should one person have managed to pull ahead in life while the other has struggled or stagnated than there may be an adjustment against the person who has done better – even if this has been achieved under their labour and effort.

·        If you choose to transfer your house from joint names to one of you solely right after separation – but don’t finalise your property division for some time – you may also miss out on valuable tax incentives which are available when using one of the legal options. For example, there is an exemption for the stamp duty payable on such transfer if you enter into a legal agreement or have Court Orders made. There is also roll-over relief for CGT should you transfer a property into one of your sole names and that property had previously been used by you as an income earning property.