Latest / Reflect Reclaim & Liberate - with Sallyanne Hartnell / Divorce FAQs Part 3

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Divorce FAQs Part 3 · Reflect Reclaim & Liberate - with Sallyanne Hartnell

• 0:07
  SPEAKER_00: Welcome to Reflect, Reclaim and Liberate the podcast, finding the space for all of you in life and love.
• 0:15
  SPEAKER_00: I'm your host, Sally Ann Hartnell, and this podcast is for anyone wanting to reclaim and liberate themselves in their relationships and their life.
• 0:25
  SPEAKER_00: Wherever you are on your relationship journey, these conversations meet you right there.
• 0:30
  SPEAKER_00: In soulful, deeply supportive DNMs with me and interviews with other gorgeous humans.
• 0:36
  SPEAKER_00: Moving you from where you are to where you most want to be.
• 0:40
  SPEAKER_00: A life and love completely aligned with your deepest desires to have it all on your own terms.
• 0:47
  SPEAKER_00: If you're seeking a relationship and a life that lights up all of you, you're in the right place.
• 0:54
  SPEAKER_00: I'd also like to acknowledge that this podcast is recorded on the traditional lands of the Wurundri people and pay my respects to elders past, present, and emerging and acknowledge them as the original storytellers of this land.
• 1:20
  SPEAKER_00: Um, podcast episode covering the divorce FAQs that I most commonly hear from clients and those in my community.
• 1:31
  SPEAKER_00: And yes, it was only supposed to be one, then it was only supposed to be two, but now it is three episodes because there is a lot.
• 1:39
  SPEAKER_00: So let's dive in to the FAQ part divorce FAQs part three.
• 1:48
  SPEAKER_00: Back to the kids.
• 1:50
  SPEAKER_00: When can the kids decide where they live?
• 1:53
  SPEAKER_00: Is a question that we are asked, I'm asked pretty regularly.
• 1:58
  SPEAKER_00: Again, there's no hard and fast rule, but the court, family court, will always support what is in the best interests of the child or children, and will consider a whole range of factors when deciding where a child should live.
• 2:16
  SPEAKER_00: And of course, court's only on the table if the two of you as parents can't agree.
• 2:22
  SPEAKER_00: And as parents, you will, I'm sure, listen to your kids, take into consideration their thoughts, their feelings in an age and stage appropriate way.
• 2:31
  SPEAKER_00: But legally, there's no hard and fast age where children can decide for themselves.
• 2:37
  SPEAKER_00: So the court will take into a whole range of factors, they'll consider yes, the wishes and the views of the children, age and state appropriate, depending on their maturity and their understanding, and also whether their views have been influenced by anyone else, either one of you, for example.
• 2:54
  SPEAKER_00: So there is no set or prescribed set age at which a child or children can decide for themselves.
• 3:02
  SPEAKER_00: But of course, the older and more mature the child, the more weight would be placed on their wishes and preferences in legal proceedings.
• 3:11
  SPEAKER_00: Flipping back again to some more money stuff, spousal maintenance.
• 3:16
  SPEAKER_00: What is it and will I have to pay it or will I receive it?
• 3:20
  SPEAKER_00: So spousal maintenance or maintenance is financial support from one member of a couple, one separating member of a separating couple, one party to another party.
• 3:31
  SPEAKER_00: And usually, most usually in Australia, it's paid on an interim basis until your financial matters are sorted and finalized.
• 3:39
  SPEAKER_00: But sometimes it extends beyond that.
• 3:41
  SPEAKER_00: Now, again, you can decide this between yourselves.
• 3:44
  SPEAKER_00: For example, one of you mum has taken um significant time out of the workforce or is still a stay-at-home mum when um when you separate, and so to allow time and space for her, you to catch up to find work that works around the kids, etc.
• 4:05
  SPEAKER_00: etc., you might decide as a separating couple that spousal maintenance will be paid on top of child support.
• 4:13
  SPEAKER_00: So you can decide it between yourselves, or if it's a matter that goes to court, the court decides, and the court considers things like the need of the person receiving maintenance, what is reasonable living expenses of this person who's seeking maintenance, and is that higher than their current earning capacity?
• 4:33
  SPEAKER_00: It also will consider the capacity to pay of the person paying the maintenance, that the payer's income earning capacity actually is over and above, exceeds those reasonable living expenses.
• 4:45
  SPEAKER_00: It also, the court also considers, well, we've just talked about each party's income earning capacity, whether who has care of the children from the relationship, the standard of living that's reasonable, they'll also take into account the size of the asset pool and whether one or either of one or both of you is um cohabiting with a new partner and the financial circumstances relating to that new partnership, new new living arrangement.
• 5:12
  SPEAKER_00: So if you agree to pay spousal maintenance, you may, and again, it's probably advisable to get some legal advice around that and have a binding financial agreement drawn up so that everybody knows everybody knows how much, for how long, and under what circumstances that might change.
• 5:37
  SPEAKER_00: For example, one of you repartners or the recipient repartners and is cohabiting with a new partner, etc.
• 5:44
  SPEAKER_00: etc.
• 5:44
  SPEAKER_00: etc.
• 5:45
  SPEAKER_00: Um, binding financial agreement is exactly that binding, legally binding and enforceable.
• 5:49
  SPEAKER_00: Um, and it protects everybody, it protects both payer and pay e or recipient.
• 5:55
  SPEAKER_00: Next, FAQ.
• 5:57
  SPEAKER_00: What is mediation?
• 6:00
  SPEAKER_00: Or what is family dispute resolution?
• 6:04
  SPEAKER_00: Basically, they are the same thing.
• 6:06
  SPEAKER_00: Family dispute resolution is a form of mediation, and mediation is a facilitated conversation by an independent registered practitioner, FDRP, family dispute resolution practitioner, practitioner.
• 6:21
  SPEAKER_00: Sorry.
• 6:22
  SPEAKER_00: It's a practical way for separating couples to try to come to agreement and make arrangements, financial childcare arrangements for their future without needing to go to court.
• 6:34
  SPEAKER_00: So it might be the financial property issue, or it may relate to parenting, or it may relate to both.
• 6:40
  SPEAKER_00: And a mediator will work with the couple to establish needs and provide general legal knowledge and try and bring you together, bring you to a middle, bring you to an agreement, but they mustn't favor one of you over the other and they mustn't offer a legal opinion.
• 6:57
  SPEAKER_00: So mediation or FDRP or FDR is actually the same thing.
• 7:03
  SPEAKER_00: And since 2006, I think, but anyway, it is currently a requirement under the Family Law Act that separated couples must attend and make a genuine effort to try at least and resolve their family law dispute, their disagreement through mediation before they are able to apply or ask the court to decide property settlement or make parenting orders for them.
• 7:33
  SPEAKER_00: So you need to attend mediation and get that certificate, like I talked about when I was talking about sole application.
• 7:39
  SPEAKER_00: Need to attend mediation, at least attempt to sort your stuff out before the court will look at it.
• 7:44
  SPEAKER_00: There are, of course, exceptions to it, including circumstances of any urgency, such as parental alienation, your child spending no time with you.
• 7:54
  SPEAKER_00: Um, there has been or there is a risk of family violence, or there's abuse of the child, or there is a risk of abuse.
• 8:02
  SPEAKER_00: So that requirement to attend mediation is waived by any of those circumstances, any of that being being present in your family.
• 8:15
  SPEAKER_00: If, of course, you can't resolve your disagreement, you can't come to agreement with the family law, family dispute resolution practitioner or mediator, they issue a certificate stating that you've attempted mediation but you can't reach an agreement, or you fall under one of those exceptions, and that allows you to apply to file an application in court.
• 8:37
  SPEAKER_00: Will mediation work for us, or why should we try mediation?
• 8:41
  SPEAKER_00: Well, as I've just outlined, you need to at least attempt mediation before you can file in court.
• 8:46
  SPEAKER_00: And in many cases, mediation is really cost effective, costing a whole lot less than it would if you go to court, costing a whole lot less than a court-based litigation litigious um divorce.
• 9:00
  SPEAKER_00: It's also faster than the court system, so it's time efficient.
• 9:04
  SPEAKER_00: The courts have a huge waiting list and non-urgent applications to be heard in the it's not called the family court, but let's call it the family court.
• 9:14
  SPEAKER_00: Um, in the family court can take between 8, 12 months or even longer.
• 9:19
  SPEAKER_00: A mediation, on the other hand, can occur as soon as the mediator that you both agree on is available, as soon as you're ready, basically.
• 9:27
  SPEAKER_00: And once you reach an agreement at mediation, then the process to get consent orders drafted, signed, and filed is pretty straightforward and pretty quick.
• 9:38
  SPEAKER_00: Mediation, why should you attempt mediation?
• 9:40
  SPEAKER_00: Well, mediation is also less emotionally draining.
• 9:43
  SPEAKER_00: Going to be court is incredibly stressful and emotionally exhausting, and it will impact all areas of your life and other people in your life, kids, friends, family members.
• 9:55
  SPEAKER_00: So mediation keeps you can help keep you out of court.
• 9:58
  SPEAKER_00: Um, it can also help you have your say.
• 10:01
  SPEAKER_00: You can be heard about what's important to you, your values, you can be more in control of the process and the outcome than you would be in a courtroom where you will have little opportunity to talk.
• 10:14
  SPEAKER_00: So mediation allows you to voice what's most important to you, and very, very often mediation works with skilled practitioners.
• 10:24
  SPEAKER_00: It can be really really effective, provided, of course, both of you want it to work, and that, as we know, is not always the case.
• 10:33
  SPEAKER_00: Now, if you opt for mediation as your preferred process through your divorce, you can also be represented by a lawyer or not, but it is advisable always, as I've said, to get legal advice before mediation so you know what to expect and what your legal rights and obligations are.
• 10:53
  SPEAKER_00: So you can have a lawyer as well as user mediator.
• 10:58
  SPEAKER_00: Another thing I'm really often asked is whether you can take a support person with you in mediation, whether I can come in, say, as your divorce coach in mediation.
• 11:09
  SPEAKER_00: Now you can have a support person with you in mediation, but there are absolutely stipulations, restrictions.
• 11:18
  SPEAKER_00: So you your support person can't be someone who's been involved in the dispute or will benefit or is affected by it.
• 11:30
  SPEAKER_00: So you'll have an individual intake session with the mediator, and you can absolutely have a support person with you for that session.
• 11:38
  SPEAKER_00: But if you want to take a person, a support person with you into the mediation conference itself, which is where your you and your soon-to-be ex will be, with or without lawyers.
• 11:49
  SPEAKER_00: If you've chosen to have lawyers, your lawyers may be present too.
• 11:52
  SPEAKER_00: If you want to take um a support person with you into that media part of the mediation, the mediators both the mediator will need to agree as well as um the other parties.
• 12:06
  SPEAKER_00: You'll also require be required, the support person will also be required to sign a confidentiality agreement.
• 12:13
  SPEAKER_00: And what they can't do, they can't advocate for you or speak on your behalf.
• 12:17
  SPEAKER_00: They can help explain things and discuss things with you, but it needs to be agreed by all parties that it is um, yeah, it needs to be agreed by all parties basically.
• 12:28
  SPEAKER_00: Next question, next frequently asked question.
• 12:32
  SPEAKER_00: What is this thing called collaborative family law?
• 12:36
  SPEAKER_00: Well, collaborative family law or collaborative practice is a resolution-focused way of negotiating your your divorce settlement, of coming to agreement.
• 12:48
  SPEAKER_00: You each have legal representation, but your lawyers are specially trained in collaborative practice, and unlike a mediator, a collaborative lawyer is not a neutral party, but rather is an advocate for their client.
• 13:04
  SPEAKER_00: So you will have in collaborative practice, you will have a lawyer advocating for you, and your spouse will have a lawyer advocating for them.
• 13:13
  SPEAKER_00: The difference is they work together.
• 13:16
  SPEAKER_00: These two lawyers work together, sometimes in conjunction with other collaborative trained professionals.
• 13:22
  SPEAKER_00: Usually a financial advisor, independent financial advisor is involved, sometimes psychologist, coaches, counselors, to facilitate the discussion between you and come to a win-win agreement.
• 13:36
  SPEAKER_00: It's a more holistic and really human-centered approach because it takes into consideration, yes, the legal, but also the non-legal aspects of separating and separating a family and dividing your assets.
• 13:51
  SPEAKER_00: It considers your wants, your needs, your fears, your concerns, your goals, and it really has at its core the aim of reaching a mutually agreed, mutually acceptable settlement.
• 14:02
  SPEAKER_00: One that is, is I said, as I said, a little more win-win than win-lose.
• 14:08
  SPEAKER_00: So both you and your partner will, as well as your lawyers, commit to and sign an agreement stating that during collaborative practice, during collaborative process, you won't litigate, go to court, or even threaten to do so.
• 14:26
  SPEAKER_00: And the lawyers will not advise you as their clients to do that, to threaten litigation or to go to court.
• 14:33
  SPEAKER_00: So if the collaborative process doesn't bring you as a couple to a resolution, the agreement that agreement's terminated, and the lawyers for both can't represent either of you in any court-based litigation, and you'll be referred on to new lawyers.
• 14:50
  SPEAKER_00: So with collaborative, with collaborative practice, I'm sorry, the key, there are key factors.
• 14:56
  SPEAKER_00: You are both present, both present at all times during the negotiations and discussions.
• 15:02
  SPEAKER_00: You are really more in control of the process.
• 15:05
  SPEAKER_00: Um, non-legal issues are fully addressed and deemed to be equally as important as the legal ones, or at least important, and it's win-win focused.
• 15:14
  SPEAKER_00: It has a win-win outcome rather that win rather than that win-lose mentality of um of court-based litigation.
• 15:23
  SPEAKER_00: It's also really important to remember and note that while it is collaborative, you each have an independent financial, not financial, I'm sorry, you each have legal representation.
• 15:36
  SPEAKER_00: And they, those collaborative trained practitioners, are working together to bring you to a win-win agreement.
• 15:46
  SPEAKER_00: I'm also often asked whether collaborative, the collaborative family law processes will work.
• 15:52
  SPEAKER_00: Will this process work for me?
• 15:54
  SPEAKER_00: Now, if there are any concerns that you have about being in the same room as your former partner or negotiating with them, a collaborative approach to your divorce might not be possible.
• 16:05
  SPEAKER_00: But you'll be screened by the collaborative lawyers who will determine fit, and and that does depend on a few things.
• 16:12
  SPEAKER_00: As I said, um, whether you can be in the same space, um, the level of trust between you and your ex, um, your capacity, your capacity, and your ex's capacity to really demonstrate empathy and and behave with compassion for each other, which is really hard to do, let's face it.
• 16:30
  SPEAKER_00: You're divorcing for really good reasons.
• 16:32
  SPEAKER_00: Um, it's also dependent on your ability to be guided and communicate uh what's most important to you, that willingness, and this is where coaching can be invaluable, um, getting you clear on your values, your wants, your needs, and your capacity to understand the difference.
• 16:51
  SPEAKER_00: Coaching here can be an absolute game changer.
• 16:54
  SPEAKER_00: It also depends on your willingness to be and your capacity too to be future focused and solutions-oriented, keeping the children top of mind, their best interests at the forefront, but really looking at creative solutions that are going to work for you and for your children and even for your ex.
• 17:12
  SPEAKER_00: And of course, whether there are any barriers, psychological, mental health issues, drug or alcohol dependencies, all that sort of stuff.
• 17:20
  SPEAKER_00: So, will collaborative practice work for me?
• 17:23
  SPEAKER_00: Depends on your unique and individual circumstances.
• 17:27
  SPEAKER_00: Another question that often comes up is around de facto relationships.
• 17:32
  SPEAKER_00: When are we considered de facto after how long?
• 17:35
  SPEAKER_00: Now, many people believe, or there's a commonly held belief, that it is two years of living together to be then considered in a de facto relationship.
• 17:48
  SPEAKER_00: In fact, there is no set time period that a couple needs to be living together before they can be considered to be living in a de facto relationship.
• 17:57
  SPEAKER_00: So if you're in any doubt, it is advisable to go get some legal advice.
• 18:02
  SPEAKER_00: The Family Law Act generally doesn't apply to de facto relationships unless the couple's been living together for at least two years or there is at least one child of the relationship.
• 18:14
  SPEAKER_00: But de facto relationships do come in all shapes and sizes and durations.
• 18:21
  SPEAKER_00: So again, it's prop it's probably preferable if you're wondering about it to get some legal advice.
• 18:27
  SPEAKER_00: There's no checklist of factors to prove that you're in a de facto relationship.
• 18:32
  SPEAKER_00: However, the main things that are considered when um when determining de facto is whether you're living together.
• 18:40
  SPEAKER_00: Yes, how long you've been living together, whether you've got a sexual intimate partner relationship, whether you've got short gen joined finances, shared bank accounts, whether you own property together, whether you share weekly living costs and things like that, even whether your family and friends know them as a couple, and definitely whether you have children together.
• 19:03
  SPEAKER_00: In fact, I was recently at an event where a partner in one of the big family law firms in Melbourne spoke, and she said that even if you do not live together, you can be considered de facto in some step circumstances.
• 19:19
  SPEAKER_00: So if you're in a live apart together relationship with, for example, joint or shared finances, or you share time together in each other's homes, you may be considered legally de facto, which has implications, and just something to add to the complexity of life relationships and divorce.
• 19:37
  SPEAKER_00: So money, property, and de facto relationships are complicated, so please do seek specialized legal advice.
• 19:49
  SPEAKER_00: Last but not least is less a frequently asked question and more uh holy moly, my ex has done this.
• 20:01
  SPEAKER_00: And I'm going to frame it as a question because this, of course, is frequently asked questions, and that is can I post the details of my court orders or my divorce on social media?
• 20:12
  SPEAKER_00: And the answer to that is a great big no.
• 20:17
  SPEAKER_00: So to ensure privacy and anonymity to anyone involved in family law proceedings under the Family Law Act, it is a punishable offence for you or your ex to publish or broadcast any account, any information about the family law proceedings, even in part, which identifies anybody, the parties, either of the couple, or witnesses in their proceedings.
• 20:48
  SPEAKER_00: So this and this covers all forms of publishing.
• 20:53
  SPEAKER_00: So, you know, back in the day in the newspaper, but now we're talking mostly, of course, about social media.
• 20:59
  SPEAKER_00: Um, and it does include anyone else, friends, family, school, employees, banks, from um, from reading the documents prepared during the family law proceedings.
• 21:13
  SPEAKER_00: They cannot legally be posted on the internet on your social media or in any way made public in a way that will identify you, your ex or any witnesses.
• 21:25
  SPEAKER_00: So, no, you can't post your divorce the details, the legal court details of your divorce.
• 21:32
  SPEAKER_00: Yes, you can post I am divorced, I am legally divorced, of course you can, but you cannot post details if your um matter has gone through family court.
• 21:44
  SPEAKER_00: And that brings us to the end of what was going to be two, but because there were so many of them, uh became three divorce FAQ podcast episodes.
• 21:54
  SPEAKER_00: I hope you've I hope they've been supportive and useful in um clarifying some terminology, answering some questions that you might have, and of course, if you know someone who would be supported to listen to this or one of the other podcast episodes, please please share it with them.
• 22:14
  SPEAKER_00: Again, rate, review, like, follow, all the things so we can get this podcast into the ears of those who most need it.
• 22:21
  SPEAKER_00: Thank you for being here.
• 22:23
  SPEAKER_00: I so appreciate you.
• 22:25
  SPEAKER_00: Until next time.
• 22:27
  SPEAKER_00: I'm Sally Ann Hartnell, Relationship Coach, and you've been listening to Reflect, Reclaim and Liberate.
• 22:33
  SPEAKER_00: You can follow me on Instagram at Reflect Coaching, and if you can think of anyone who would love this episode, please, please share it with them.
• 22:41
  SPEAKER_00: I'd also be so grateful if you'd follow the podcast and review this episode so we can get it in the ears of a whole lot more humans just like you who are ready to reclaim and liberate themselves in life and love.
• 22:54
  SPEAKER_00: I hope you'll join me next time for another episode of Reflect, Reclaim and Liberate.
• 22:59
  SPEAKER_00: Until then.