Sisters in Law: Couple’s custody battle after wife divorces ‘lazy’ husband

Lockdown opened this wife’s eyes to her husband’s bad habits and now she’s cooked up a plan to make sure he pays for it.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn help someone who is applying for full custody of her children after a divorce.

QUESTION:

My husband and I were together for eight years before deciding to get a divorce during lockdown. Our once happy marriage disintegrated when we had to spend 24 hours a day under the same roof and I realised how lazy he is. I basically had to do everything from working to cleaning and looking after the kids, while he seemingly did as little as possible. After seeing how unmotivated he is I’ve decided I want full custody of the kids – I don’t trust him to do anything fun or educational with them while they’re in his care. What are my rights when it comes to applying for full custody? – Jen, WA

ANSWER:

You’re not alone when it comes to a lockdown divorce. Family law experts predict there will be a tsunami of divorces in about mid-2021 as couples who broke up during COVID lockdowns reach the 12 months of separation needed before they can file for divorce.

You’ve mentioned you want full custody of the kids. To do this you can make an arrangement with your husband by agreeing to a parenting plan or filing consent orders in court to ensure the arrangement is enforceable.

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Filing for divorce when you have kids together can be a tricky custody battle. Picture: iStock

If your husband won’t agree to you having full custody, then you’ll have to apply to the Family Law Court for a decision. Even if he does agree, the court will still consider what is in the best interests of the child.

The Court considers the benefit of the child having a meaningful relationship with both parents, and any need to protect the child from harm.

If there is any family violence, abuse or concerns about neglect, this will be an overarching factor that the court will consider when deciding.

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After being confined together for months during COVID, the wife has decided it’s best to split. Picture: iStock.

You haven’t mentioned how old your children are, as the court will also consider the children’s views if they are mature enough. The court will also consider relationships with significant others, such as grandparents, and the capacity of the parents to provide for the child. This can include any characteristic specific to the child, yourself, or your husband that may be relevant, such as lifestyle, maturity and background.

The court will make a decision, called a ‘parenting order’, to cover parental responsibility, communication, contact with significant others (such as grandparents, aunts and uncles), any care or development aspects (such as schools they will attend) and disputes. This parenting order is enforceable.

Depending on the parenting order and the children’s custody, there may be a requirement for child support payments to be made by either you or your husband. The Child Support Agency uses a mathematical formula to work out how much child support should be paid, based on your respective incomes and the number of days that the children are in each of your care.

Finally, you may be tempted to provide reasons when applying for your divorce.

Children can get caught in the middle of a custody dispute. Picture: iStock

The Family Law Court does not consider why a marriage broke down, or place blame when deciding whether to grant a divorce.

The only requirement is that there has been an irretrievable breakdown of the marriage. This is usually shown by being separated and living apart for 12 months with no reasonable prospect of reconciliation.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

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