This is the second in a series on divorce: how to plan it, handle it, survive it, and get the tattoo afterwards. Here is the first one, and stay tuned for more.
Everyone thinks they’re an expert on family law. They’ve watched a few episodes of Suits and know a friend who went through a divorce, so they can confidently give you their views on the intricacies of the Family Law Act.
Their friend “got fleeced” by a vengeful and greedy ex because judges favour women.” It should “just be 50/50 if there are no kids”. The courts “don’t like taking superannuation from women”. I’ve heard them all.
None of the above are true. But don’t just believe me, believe Tessa Kelman, Senior Associate in the Family and Relationship Law Team at Lander & Rogers. She’s been there for women (and men) in all types of divorces, and has some actual law experience to drop on us.
The 50/50 Split is not a thing
“There is no assumption of equality in Australian family law,” Tessa says. “It’s based on a number of considerations like contributions the parties have each made and future earning capacity”.
And here’s some official wording from the Family Court of Australia. The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage … and are based on:
- working out what you’ve got and what you owe, that is your assets and debts and what they are worth
- looking at the direct financial contributions by each party to the marriage or de facto relationship such as wage and salary earnings
- looking at indirect financial contributions by each party such as gifts and inheritances from families
- looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
- future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn.
The way your assets and debts will be shared between you will depend on the individual circumstances of your family. Your settlement will probably be different from others you may have heard about.
Yep, that’s the court telling you that whatever happened to your mate’s cousin’s friend probably doesn’t apply to you.
I bolded the part about financial and non-financial contribution. ‘Who earned what’ isn’t the only data point to consider. In fact, if one person earns more, it can mean they pay the other party more, because of the old ‘future requirements’ clause.
Yes, your ex can haunt you in both the future and the past. It’s kinda nuts.
And can I just add here that it probably won’t feel fair to the two people in the middle of it. After a long and difficult settlement of my own, I don’t feel like it was super fair. I’m sure my ex doesn’t think so. I suspect that means it probably was fair.
When I asked Tessa what advice she would give someone considering leaving their relationship, her number one tip was:
Chances are, you’ve been mulling this decision over for months or years. So, arm yourself with information.
Get advice and make a plan before you leave
“We recommend you see a lawyer as early as possible, and ensure you have a team around you. This allows you to set up a strategy to leave the relationship,” Tessa said.
A professional can give you guidance on things like what to set up (e.g. joint signatories on bank accounts). Even if it means investing in some professional fees up front, it means you can start in a strong position – which will pay off later.
Have a team of supporters
However, it doesn’t matter if you’ve already left. Good advice is crucial at any stage of the break-up.
Finding a good lawyer is important – ask around, and don’t be afraid to audition them until you find someone you click with. First consultations are often free so you can see what you think.
Your team should also include friends and family if possible – you are going to need people in your corner. People like to help, but sometimes you need to give them a specific task.
Or sometimes they just fall into it. Like, my dad was head of lawyer management, my step-mum was head of cheerleading to keep me in the fight, my mum was head of hating my ex, my co-worker David was head of letting me cry in his office, etc. You get the picture. You need your people.
Every situation is different
You need to find the right solution for you.
For example, one thing people often get told is not to leave the matrimonial home. I made the decision to do just that, and it was not a bad decision in and of itself.
But it did create complications, one of which was that he “lost” a bunch of my paperwork, like my birth certificate, university degree and the Clairol Colour Consultant certificate from my chemist girl days (how can I replace that?).
Look, maybe he did actually lose that box, and not just bin it. I’ll never know, but the lesson was: keep hold of your paperwork.
Regarding leaving your home – my friend who was in an abusive marriage said “sometimes it’s too dangerous to stay”. Ultimately, you have to do what’s right for your own situation.
Another piece of advice from Tessa is to be confident and stand up for yourself.
“Don’t avoid standing up for your interests just because you’re scared of the process. It may be difficult, but it may also run smoothly, and you won’t know until you’re in it,” she said.
Having a legal point of view behind you is a great way to boost your confidence and one of the reasons why it’s important to get professional advice.
Tessa also recommends getting a handle on the money situation where possible.
“A lot of women tend to be in a relationship where the husband or partner runs the finances and they have lost control or transparency of their family finances. Try and ensure you have as much visibility of the family finances before you leave, as it will make it easier later on.”
That is damn fine advice and I’m sure all my Fierce Girls would be all over it. But maybe it’s not been the case historically, and a break-up is the catalyst you need to take charge of your finances.
It doesn’t always suck
I don’t want to give you the message here that every divorce is a total clusterf*#k. A good friend of mine said: “Financially I’m proud of our divorce. No lawyers, clean split 50/50 of the house, cars and associated debts.
“Above all we knew that no amount of sadness, frustration or anger was worth taking it out on each other for more financial or emotional mess. We were generous about belongings, and didn’t haggle. Just negotiated a peaceful end.”
So yes, friendly divorces do happen. Sometimes you can’t tell how someone will act until they’re under pressure. But you can hope.
You got this, girl
All through history, death and divorce have been major plot devices to move women forward in their personal journeys. I’m going to leave you with this great comment that one of our Facebook fans, Tracey Hollingworth, left on the Fierce Girl Finance page:
“My Mum was left with nothing (except debt) when my father died in ’65. She was in her mid 40’s. She worked as a ‘sandwich hand’ then a filing clerk. One of the jobs involved a Stockbroker…She then enrolled in evening classes, run by the Stock Exchange and eventually procured a job as Scrip Supervisor in a very prestigious broker. He was incredibly kind, generous and non-sexist in his work ethic and behaviour. She eventually owned a divine home unit, with ocean views in Mosman.”
Tracey’s mum is the OG Fierce Girl we all need, and shows you that being on your own is definitely not the worst possible outcome for your life.