Nadia MacLeod

We look at the difference between  divorce and separation, and what you should do to legally terminate the relationship.

If you are in a de facto relationship and separate then that is the final, legal separation (noting that you will have to formally separate your assets which we will discuss further). However, if you are married and you separate from your spouse then you legally remain married and you must apply to be granted a divorce to finalise your permanent separation.

What is divorce?

Divorce is the official (legal) termination or dissolution of a marriage by a Court.

How do you obtain a divorce?

You must complete and file an Application for Divorce with the Family or Federal Circuit Court.  This Application can be completed jointly or solely (i.e. only one spouse applies) and then must be served on the other spouse.

In Australia there is only one ground for divorce, that the marriage has irretrievably broken down and to be granted a divorce you must show that you have been separated for a period of 12 months or more.  There are other requirements if you have been married for less than 2 years or have separated under the same roof for part or all of the 12 months.  A hearing will be scheduled which you may or may not be required to attend, depending on the individual circumstances and if the court grants your divorce it will be finalised one month and one day after the hearing date.

While a divorce terminates your marriage, it does not terminate your financial responsibilities and shared assets with your ex-spouse.

How do you divide your assets?

For both married and de facto couples this can be done by way of a property settlement.

If you are married, this can be finalised either prior to or after you have divorced.

Where you both agree as to the division of your assets, this can be either by an informal arrangement with your ex-partner which is NOT legally binding, or formally documented by way of Consent Orders or a Binding Financial Agreement.  If you cannot reach agreement with your ex-partner then you can apply to the Court to make Orders.

To apply to the Court for Orders, there are time limits, 2 years from the date of separation for de facto relationships and 12 months from the date of divorce for married couples, unless there are extenuating circumstances and the Court grants you leave to bring an Application.

Why should you formally document the property settlement?

The value of all your assets and liabilities are taken at the time a property settlement is finalised, even if this is several years after the date of your separation and the court process rewards a “spender” and penalises a “saver”.  If your ex-partner later determines that your informal settlement is not sufficient they may be able to apply to the Court. It is in your best interests to formally document and finalise your settlement as promptly as possible, particularly in circumstances where you hold substantial superannuation assets, have joint interests in a business or are both on the title to property.

What else do you need to do?

After separation it is also important to:

• make a new Will in contemplation of your separation and divorce;
• remove your ex-partner from any binding superannuation nomination; and
• if you are listed as joint tenants on a property title, seek the assistance of a conveyancer to change this to tenants in common. You should do this because if a joint tenant passes away, their interest automatically passes to the surviving joint tenant (who could be your ex-partner), rather than to their estate. See our article on the differences between Joint Tenancy and Tenants in Common.

Hall v Hall and the meaning of ‘financial resource’ and spousal maintenance.

Recently the High Court of Australia determined the case of Hall v Hall [2016] HCA 23 concerning a dispute over the payment of spousal maintenance. We will have a look at what a ‘financial resource’ is and whether no knowledge of that entitlement can impact a claim for spousal maintenance.

What does the Family Law Act say?

Under the Family Law Act 1975, a party to a marriage is entitled to the payment of spousal maintenance from their ex-partner if they are unable to adequately and independently support themselves.[1] For this to occur two criteria must be met:

1. The person must show evidence that they are unable to support themselves independently (i.e. a need for resources); and
2. The other person must have the financial capability to meet these financial needs.

In making this order, a court will have regard to the applicant’s:

• Age;
• Health;
• Income;
• Ability to gain employment;
• Availability of financial resources;
• Care of any children under 18; and
• Other relevant circumstances.[2]

Essentially, the intention is to allow the Court to make orders that enable both parties to adequately support themselves and any minors.[3]

So what happened in this case?

A husband (a property developer) and wife (medical practitioner) separated, with the wife submitting an application to the Family Court for interim spousal maintenance of $28,000 per month, based on her current needs and to assist with the children’s school fee payment. Whilst the wife’s financial statement disclosed an interest in her late father’s estate, she did not have knowledge of the particulars of the benefit, nor a copy of the Will.

The wife was successful in her application for spousal maintenance, but the husband appealed the decision.

It was later revealed that the wife was entitled to a payment of $16.5 million (providing she was 60 years old and separated from her husband) and an annual payment $150,000 until the lump sum was claimed. The wife alleges she was not aware of the entitlement. She argued that her lack of knowledge meant that this entitlement should not be classified as a ‘financial resource’.

The issues

1. Whether the financial interest acquired by the wife can be classified as a ‘financial resource’ under the Family Law Act; and
2. Whether the interim order for payment of spousal maintenance to the wife should be overturned based on the new evidence.

What is a financial resource?

A financial resource is something other than property that may have a future financial benefit to one or both parties. Whilst the definition of a financial resource is not provided by legislation, it can include a beneficial interest under a discretionary trust or inheritance. However, the law states that a financial resource does not include the expectation that one will benefit from the Will of a person who is still alive.

What did the High Court conclude?

The High Court found that the entitlement should be classified as a ‘financial resource’, as it was directly relevant to her ability to support herself. Despite the fact the wife made no claim to the entitlement, she was able to claim the benefit and could rely on the payment to support herself. The case determined that a ‘financial resource was “a source of financial support which a party can reasonably expect will be available…to supply a financial need or deficiency.”

Important lessons

• Spousal maintenance is not an automatic right and specific criteria must be met.
• A future benefit or ‘financial resource’ may be taken into account when making family law decisions, such as property settlements and interim orders for spousal maintenance.
• A Court must be satisfied that the applicant party is unable to support themselves independently and that the other party has capacity to provide spousal maintenance.
• The Court will make orders that are just and equitable, ensuring the circumstances of parties are taken into account.

[1] Family Law Act 1975 s 72(1).

[2] Family Law Act 1975 s 75 (2).

[3] Family Law Act 1975 s 74(1).

Starting therapy, whether you’re new to it or returning after some years off, can be intimidating. There are plenty of counsellors on offer, but how do you know who is right for you? How do you know if someone you’re interested in has the right experience to work with you?

This list of questions is designed to determine if your new therapist is a good fit, and what you can reasonably expect out of the experience.

How do you feel with this person?

Although it’s easy to walk into a new office and feel utterly blank at the prospect of spilling your secrets to a stranger, remember that counsellors chose their profession for a reason. But not every therapist is going to make you feel at ease and in a safe space to unload.

Some therapists are warm and engaging, others are cold and distant. It’s not a character flaw—professional arrogance can be found in most fields—but if you land in front of someone who is making you feel uncomfortable just by sitting there with their notepad and nodding critically, the relationship is not going to work.

Laying judgment on you is a pretty bad indicator in an opening session—judging your actions is not a therapist’s job. Helping you see the patterns underneath your actions and their effects on your life from a neutral position is within their job description.

Remember that you’re not required in any way to continue with a counsellor after the first session. If your instincts steer you away from this therapist, honour them. But on the other hand, if you visit ten therapists and don’t like any of them, there might be something going on with your thoughts and emotions about beginning therapy that’s actually unrelated to any of the individuals. In that case, it’s a good idea to choose the therapist you reacted the least negatively to and stick it out with them for a while, to uncover why you have an initial aversion to the process.

Does the therapist have experience working with the particular issues for which you are seeking therapy?

Similar to doctors and healers, counsellors develop expertise in particular issues, through study and practice. A good therapist will explain their areas of interest and experience, usually right on their website, and certainly in the first visit. The more work a therapist has put in treating clients with specific traumas and issues, the more likely they’ll know how to help you.

A therapist with experience has built a solid toolkit of skills, keeps up with their training, and consults with their peers on best practices. They’ll teach you exercises and visualizations to change negative behaviours, and help you learn how to calm strong emotions.

If you’re looking for a couple’s therapist, ask if the therapist has specific training in couples work—it’s quite a different skill set than what’s required for individual or group therapy.

Guaranteed or your heartache back…

Beware of counsellors who make unconditional guarantees of healing. The human psyche is very complex, and though a therapist is right to offer hope for healing and a path towards it, an iron-clad promise is not realistic, nor useful.

Counsellors work with you to unpack layers of protective behaviours you might not even realise you engage in. It can take years to change these habitual patterns, or to recover from trauma. That’s not to say it can’t happen, but therapists aren’t magicians, and what they offer cannot be packaged up with a flashy guarantee. Therapy is different for every person, and can even be different for someone returning to therapy after a break.

What are the counsellor’s core philosophies and methodologies around healing?

This is an important point, and one you’re right to ask about in an initial session. Does this therapist view humans as basically good and capable of healing and growth, or as unmanageable beings crashing around their lives (and it’s their unfortunate job to listen to them)?

For a deep and productive exchange between two people, particularly when the goal is mental and emotional healing, there must be compassion, and a certain degree of optimism. Therapy can be hard work—does this counsellor even believe people can change their destructive habits? If they don’t, you might as well toss their cheque out the car window.

Does this therapist foster independence or dependence in their clients?

From early on in the therapeutic relationship—sometimes the first visit, sometimes the first few visits—a good counsellor will give you a clear explanation of their approach for your issues, and the modalities they’re going to use. If this counsellor has seen your sort of concerns before, they’ll know how to help early on. They can and will explain how you’ll know when this course of therapy has finished.

Is this therapist licensed?

This is not a make or break issue, but it’s good to note. Being licensed means the counsellor has extensive experience after university (the requirements vary across countries). They passed a licensing exam, and have had more supervision of their practise than non-licensed therapists. This is not to say they’re automatically better at their jobs, but that they probably went through more rigorous training.

The good news is, when you find a counsellor that is a good fit for you, you’re much more likely to get the results you’re looking for. Just do your due diligence and ask the right questions before choosing your next counsellor to ensure a positive outcome.

About Clinton Power

Clinton Power is a relationship counsellor, individual psychotherapist and the owner of Clinton Power + Associates, a private practice dedicated to helping singles and couples move out of relationship pain. Clinton’s book 31 Days to Build a Better Relationship is available for Kindle on Amazon. Follow Clinton on Twitter or Facebook.

Humans are one of only a few animal species who mate for life (sometimes). We’re joined in this practice by whales and geese, and these animals don’t get accused by their mates of “not being present.”

Humans are the only animals with a concept of past and future, and these concepts set up expectations that can doom relationships. We compare our present partner to the last one or the imaginary next one—these idealisations set up impossible standards.

How do you know if this relationship is doomed, if it can be saved, or even if the relationship is worth saving?

There’s no magic formula, but there are some questions you can ask to determine where the relationship stands. Enlisting the help of a good couples therapist will lend more clarity to the situation. A skilled therapist will help both partners understand their own negative patterns and how to create healthy, loving ones instead.

At the root of the relationship lies one question, which both partners must answer: does being together increase or decrease everyday wellbeing and happiness?

Before you read the follow-up questions to that main one, there’s another point that must be addressed. If there’s violence in the relationship, you need professional help, a separation, or both. Violence is obviously traumatic to the abused party, but it’s also bad for any children involved (even to witness it), and sometimes for family members and friends outside the relationship.

1. Do you like to be together?

It’s nearly impossible to get back the initial spark of a relationship once it burns out. There are actual physiological reasons for the wild attraction that happens at the beginning, and successful relationships learn to adapt to the next phase.

However, if you’ve come to the point where neither of you can stand to be in the same room, this is a bad sign. If it’s always a chore to get through another silent dinner, why do you keep having dinner together? One of the main reasons we enter into relationships is to enjoy another human’s company. Relationships take work to succeed, but they shouldn’t be hard labour every day.

2. Do you trust your partner?

Fully trusting another person is one of the hardest things to do. Our every instinct seems to warn against it, but for some people, we’ll take that leap. If you have given your partner your trust and they’ve repeatedly broken it, the relationship is in trouble. Breaking trust doesn’t have to be as obvious as cheating on you or stealing from your bank account. A pattern of small, seemingly harmless lies demonstrates a lack of commitment to the relationship. Your partner could be holding back information for purposes of control, in a kind of power play. When you confront them on this behaviour, what is their response? Are they evasive? Defiant? Mocking? All these are red flags.

3. Does respect flow both ways?

Along the same lines as trust, mutual respect is critical for the health of a relationship. If either party is constantly belittling and patronising the other, for whatever reason, the relationship will fail. In many relationships, one spouse makes most of the income while the other raises the children and keeps house—there’s nothing wrong with this setup, as long as both roles are held in equal respect.

If you’re looking to improve yourself in some way—returning to university, losing weight, quitting smoking—and your partner stands firmly in the way of this change, that’s another sign of eroding respect. They feel so threatened by your possible change (and what it could mean for them) that they’ll tear you down to prevent it from happening.

4. Are you able to fight with integrity, and move on?

All human relationships involve conflict, it’s part of how we communicate. (Laughter, sex, hand gestures, and eye contact are a few other ways). In a healthy relationship, arguments lead to growth. When both people can put their egos aside and really listen, empathy and patience will bloom. In rocky relationships, where both partners are lashing out, blindly defending their positions and nursing old resentments, there’s no room for compassion. The relationship is in trouble.

A variation on this theme is when conflicts always turn physical (in other words, sex). While this sounds better than retreating to your separate corners, it’s unlikely that the core problem was resolved. It will resurface again later, and patching another round of sex over the issue may or may not help.

Finally, be honest with yourself if the relationship is clearly ending. You might want to save it, but your partner is on their way out. You can strive to fix this or that about yourself, spend a pile of money on them, beg them not to go—but you’re rearranging the deck chairs on the Titanic. When you’re alone in the desire to keep the relationship alive, the least traumatic thing to do is accept the loss, grieve it, and move on. A skilled relationship therapist can help greatly with that process too.

About Clinton Power

Clinton Power is a relationship counsellor, individual psychotherapist and the owner of Clinton Power + Associates, a private practice dedicated to helping singles and couples move out of relationship pain. Clinton’s book 31 Days to Build a Better Relationship is available for Kindle on Amazon. Follow Clinton on Twitter or Facebook.