When you think about separation what kind of an issue do you think it is? One way to answer this question is to look at the issues involved. Parenting, children, finance, and future needs are nearly always amongst them. Will my separation have a damaging impact on my children? Where will the children live and how much time will they spend with each parent? How will I survive financially in the future? With these questions in mind, those faced with separation will also experience strong emotions such as fear, anxiety, grief, and loss. Such emotions contribute to separation becoming a well-being issue as well as a practical one. They also contribute to ongoing communication problems as they influence what is said and how this is heard by the other party. Emotions and poor communication can then drive a negative feedback loop and conflict can deepen and become more entrenched.
What then is the legal perspective on these issues and how does the Family Law Act assist? The Act does provide certain frameworks. Parenting agreements or plans need to be reasonable and practical. There are four steps of consideration when it comes to financial matters relating to determining the current asset pool, contributions to this asset pool both financial and non-financial, future needs and finally a just and equitable settlement considering all the circumstances of the parties. And so, when you look at all these factors, reasonable, practical, equitable and ask it would be rare to find a lawyer or mediator parties who says this is how parties behave when negotiating. The issues of their relationship have led to them down an emotional and communication pathway filled with the dangers of negative emotions and destructive thoughts and until these relational issues are addressed, there will be little opportunity for parties to go forward and create new lives in which they can sustain positive ongoing parenting relationships. From this perspective, separation is primarily a relational issue with some legal considerations.
It is frequently said that the emotional pain experienced during separation is very close to that of experiencing a death in the family. Even if that is only for one person in the separation it still creates a problematic relationship between the two parties.
When Jane left Andrew for another relationship, Andrew was devastated. He hadn’t seen the possibility of the end of their relationship at all.
As they were negotiating their separation agreement Andrew became stuck on his view of the distribution of finances and assets. He said that his hard work and long hours at the office were the reason that the family had enjoyed a comfortable lifestyle. It took several meetings before Andrew talked about how angry he was with Jane, and it became clearer that this is what was motivating his fixed position.
Only when Andrew could understand and accept that his drinking and bad temper were significant factors in the breakup of their relationship that he could begin to consider a different division of their finances and assets. Jane also had to make an emotional journey. She had become distant and verbally abusive prior to separation as she put up with Andrew’s drinking and behaviour. This led her to not just wanting a fair share of the finance and assets distribution but significantly more by way of compensation for his behaviour.
Most of the work here was about their relationship, what and why things had happened so that each of them could have a deeper understanding of the other. With this they could revisit the finance and assets distribution and come to an agreement. Clearly, these were much more relational issues than legal ones, but once resolved enabled the drawing up of legal consent orders.