The decision to separate

Q. What steps can I take to save my troubled marriage/relationship?

A. In any relationship breakdown many find relationship or marital counselling beneficial. Indeed counseling is compulsory for married couples that seek to obtain a divorce within two years of their marriage and is encouraged by the Court in almost all other cases.

While no therapist or counsellor can solve every marital problem, many people have succeeded in changing the course of their rocky relationships through counselling. Whilst there are still many who fail to save their marriage or relationship through counseling it can be an invaluable first step to narrow the issues in dispute between you and your partner and to ensure that you retain control of the direction of negotiations. It may also be of assistance in resolving issues which a Court may not consider relevant, but which may be at the forefront of the hostility between you.

One of the essential elements for effective counselling is that both parties earnestly want the relationship to succeed. Often, one party wants the marriage to succeed while the other wants out. Another ill-fated approach to trying to save marriage through counselling happens when one or both of the parties attend the sessions because they feel that it is expected of them.

Joint counselling is not always appropriate especially where a history of abuse or intimidation makes one party likely to be subjected to a power imbalance. There are many other alternatives in these circumstances and it is important that you are advised by qualified professionals to pursue the means of dispute resolution most appropriate for your circumstances.

Q. If I decide to stay until the children are older - for their sake - when is the least damaging time to go ahead with separation?

A. All children, regardless of their age and gender, feel the impact of their parents' separation. Please consider the following general observations categorised by the age of the children involved:

Infants
Infants sometimes suffer sleep disturbances and may have problems with toilet training and eating with utensils. They may also forget skills they had earlier mastered.

It is important that infants are not unnecessarily subjected to the disputes between their parents and the associated animosity. More frequent contact is usually required between infants and both their parents to ensure that the parental relationship is fostered and allowed to develop from an early age.

5 to 6 years old

When starting school children are already under considerable strain adjusting their lives to a new environment. These children may throw temper tantrums and show other signs of increased aggression. They sometimes harbour feelings of self-blame and intense sadness.

Although often able to understand the disputes between their parents it is inappropriate to allow children of this age to become unnecessarily involved in the disputes.

6 to 8 years old

These children long for their parents' reconciliation. Like their younger siblings, they sometimes experience sleep disturbances. They also want to appear and be loyal to both parents. It is important to ensure that children in this age are not invited to make comment in opposition to either parent as taking sides may have a detrimental effect on the child's personal development as well as their parental relations.

9 to 12 years old

Conversely, these children feel and direct anger at both parents, but often side with one. They experience extreme feelings of embarrassment and mortification. As they become aware of their own interpersonal relations they may form strong views about the dispute between their parents. It is important that these children understand there is no blame associated with the breakdown of a relationship and that the focus remains on making adaptations for the future and not dwelling on the problems of the past.

13 to 18 years old

These children can experience more extremes than the 9-12 years old group including extremely angry and blameful reactions. Interestingly, many of them worry about their personal finances and assets and whether they would have to directly suffer the economic effects of the Divorce. Loyalty conflicts can also be observed to exist. Children may opt for independence earlier than they otherwise would.

The bottom line is that all children, to some extent, experience short-term adjustments to separation and divorce. There is no "right age" as far as the children are concerned. If you and your partner find that you cannot function as a combined household and this is having an adverse effect on the children then the question of whether you should separate may already be apparent to you.

Q. Is there such a thing as "legal separation"?

A. No. The fact of separation will be relevant in determining the date of the breakdown of the relationship. This is important in determining when a party can apply for divorce and it may be relevant in deciding some issues about property settlement and spousal maintenance. The law in Australia does not recognise the notion of "legal separation" other than through divorce or declaration under the relevant legislation.

Q. Can I Leave the Home ?

A. Either party can choose to leave the home at any time. Your Lawyer should be consulted before making this or any other major change in circumstances. In some situations, particularly if violent, physical separation is advisable. In many cases, however, leaving the home can have serious negative consequences to the person leaving. This is particularly true if the person leaving is seeking orders relating to residence of the children but allows the children to remain in the home with the other parent. Departure from the home can also create a financial burden upon the party leaving. Tactically, it can provide the other party with control over what is often the most significant asset of the relationship.

Q. Can I Make My Spouse Leave the Home?

A. The Court will rarely compel either party to leave the home until the separation/property settlement is final unless there is evidence of domestic violence. It is important to note that domestic violence need not be physical and that orders can be obtained to protect you against harassment and intimidation. In those circumstances it may be possible to obtain an order restricting the access of your partner to your home, place of work and any other premises where you may reside.

Q. What are the grounds for Divorce and does fault make a difference in determining the outcome?

A. In Australia , Divorce is a "no fault" based system. The only ground for a Divorce is a breakdown of the marriage which can only be evidenced by 12 months separation of the parties. In some cases the 12 month separation can exist even if the parties share the home after separation provided that independent evidence can be furnished of the fact that the parties have ceased to function as Husband and Wife during the time they shared the home. Fault in relation to parenting, property and child support issues can be relevant and you need to consult your Lawyer about the way in which this could affect the outcome of your case.

Q. What if my spouse won't agree to a Divorce?

A. Provided that the proof of separation can be furnished to satisfy the Family Court the fact that one party does not want the marriage to end will be irrelevant. It can sometimes prolong the Divorce Application but it will not prevent the Divorce from going ahead.

Q. Can I apply for annulment instead of a Divorce?

A. Annulments are very rarely granted. There are highly technical questions of law which must be answered if favour of an annulment before it will be granted. In over 25 years of practice in Divorce, our firm has experienced only one case where an annulment was possible. There are however other options to consider depending upon your objectives such as obtaining a religious annulment or preparing an agreement which sets out the circumstances of the relationship for undisputable future reference.

Q. Where will the children live?

A. There are a number of factors which will determine the outcome of a case before the Court if the parties cannot agree on where the children are to live. You need to consult your Lawyer in relation to the factors which are relevant to your circumstances but, in every case, the paramount consideration of the Court is the welfare of the child. This is a golden rule in Family Law cases that you should always remind yourself "children first - me second". Tell your Lawyer why it will be best for the children to have orders made the way you want them and think of the evidence that you can furnish to support that view. Don't concentrate on the flaws and faults of the other party unless they are directly relevant to the children's best interests.

Q. How is Child Support calculated?

A. Child Support is calculated by a formula provided under Child Support Legislation. It is based upon a number of factors including the income of both parties and the amount of time that the child spends with the person liable to pay child support and the person who is entitled to receive it. You need to consult your Lawyer for an estimate of the appropriate amount of child support in your case.

The parties are also free to reach agreement on child support which they can register with the Child Support Agency instead of relying upon the mathematical formula set out under the Act. You need to consult your Lawyer to decide whether it would be better for you to apply the formula or to reach a private agreement which can often provide greater flexibility for both parties.

Q. What Do I Do next ?

A. Please call us or send an email to us to make an appointment to discuss the issues relevant to your case with you. As with everything you tell us or provide to us, the information will be kept strictly confidential by us and not disclosed without your consent. You can be confident that your privacy and identity will be protected so that you can feel free to discuss these issues with us even if you have not yet decided to separate.