Want a healthy marriage? Here‘s what divorce lawyers say
Australians spend $3.6bn a year to fight the person they once proclaimed their eternal love for. The only winners? The lawyers. They reveal the tips and tricks to future-proof relationships.
A former judge once told me: “In most court proceedings, parties leave angry. In divorce court proceedings, they leave furious.”
Fuelled by a specific wave of emotions that only arrive with the demolition of supposedly unbreakable vows, disgruntled Australians spend $3.6bn a year to fight the person they once proclaimed their eternal love for, in hopes to rid them of their money, their assets and their power.
The only parties who leave the proceedings with an ounce of satisfaction? The lawyers.
Divorce rates are rising across the board, but especially for Australians aged 50-65.
Gen X and Baby Boomers, women, in particular, are experiencing a financial empowerment that was missing in the generations who preceded them, making it much easier to abandon a long-term relationship.
A decade-long property boom has also helped catapult couples into a state of general wealth, which means economic security and finding a place to live isn’t a problem in instances of permanent separation.
And so, as divorce continues its relentless march, esteemed family lawyers weigh in with tips, tricks and debunked misconceptions to “divorce-proof” your marriage. Here is what they came up with.
Sign the prenup
Any good lawyer (except the really money-hungry ones) will tell you the best way to handle a divorce is to steer clear of court entirely. It’s a messy, volatile process that costs an arm, a leg, a cat, a dog, three houses and potentially a child. Plus, the embarrassment of airing your dirtiest laundry in front of a judge.
How does one avoid an ugly court battle? Lay out the terms of your marriage before you commit.
“Prenuptial agreements are great tools because they promote peace and harmony,” Edwards Family Lawyers principal Frances Edwards says.
While she admits discussing the end of a marriage before it has begun is unromantic, she says it is the smartest step to take for anyone with assets – even young people who have inherited cash or bought property.
For anyone on to their second marriage, including those wanting to preserve inheritances for their children, it should be a no-brainer.
“With a prenup, you know that you’re not going to have to go through court, or go through that ugly process you might have already been through the first time,” she says.
“You’ve already decided what’s going to happen if you were to divorce, so you can put it in the bottom drawer and forget about it.”
Jamie Burreket agrees, going further to declare a binding, pre-marriage financial agreement “critical” for any person who hopes to have a successful partnership.
“Prenuptial agreements promote the idea of having discussions about finances generally,” the Broun Abrahams Burreket managing director says. “In the process of bringing an agreement together, you have a discussion about are we building our wealth together? Are we excluding some wealth? Things like that.”
It is possible the prenuptial agreement could be overturned in court, for example if there is a major change in circumstances, or perhaps one party pressured their spouse into signing it. But for the most part, they are legally binding and come highly recommended.
Don’t assume equality
Contribution is key. A judge presiding over a divorce does not assume your marriage is a partnership, but instead looks at what both members have given to the relationship and divides from there.
Barkus Doolan Winning partner Paul Doolan says it’s a common misconception that the divorce default is to split assets down the middle.
“I’ve been in a lot of partnerships, and not many of them are equal,” Doolan says. “It’s one of those easy things for people to say: partnerships should be equal. They’re not equal. People bring different things to relationships.”
Domestic duties, inheritance, property, income. All are considered when deciding who gets what.
“When a marriage breaks down and you’re looking at asset division between partiers, you really think about it in three steps,” Doolan says. “The first is determining what the two of you own, jointly and individually. The second is to look at the contributions each made.”
The third is to take future needs into account, he says. Say, if the wife is awarded full custody of the children, she may be granted greater support to do so. Or if the divorcing couple is in their 50s or 60s, health needs might factor into how assets are divided.
“Who has got the primary care of the children? Has someone made career sacrifices to enable the other party to have a career?” he says. “That might mean you then adjust the percentages.”
Keep an eye on in-laws
Verbalise family expectations from the outset, Edwards says. How often are you going to see your in-laws? In what context? Do you want to live nearby?
“When I say you have to talk about whether you are prepared to share the good, the bad, the ugly, the liabilities, the kids and the homework… you also have to share the in-laws,” she says.
It’s particularly important in the context of financial influence, Burkett adds.
“It can be very awkward,” he says. “But if you get some soundings from your partner that their parents are going to want you to live in a particular suburb, and are interested in giving you some money to do that, it’s time to have a frank discussion about what that means.”
By the time divorce creeps around, it can be too late.
“In-laws can be a good thing and they can be a bad thing. I’ve acted in highly contentious matters where it’s the in-laws who really pulled their child into line,” he says. “But I’ve also had somewhere it’s been the in-laws that are calling the shots, particularly if they start funding the divorce. They then feel empowered to have a say in the proceedings.”
Be honest about money
How much money have you brought to the table? Do you have a joint bank account? Are you a spender? A saver? A bit of both?
They are big questions to ask, but Edwards says they’re necessary for a marriage to last the distance.
“We are still seeing so many cases where one person has control of the finances and one person is completely in the dark,” she says. “You don’t have to have joint bank accounts and often people don’t. You can keep your finances entirely separate. But transparency on the money you have and the assets you possess is fundamental.”
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Eight questions to ask before you get married
● How many kids do you expect to have?
● If we have kids, who will be the primary carer?
● Who will do the cooking?
● How often do you want to visit your parents?
● Where do you want to live?
● When do you want to retire?
● How much money do you have, and how much do you spend?
● Are we going to pool our incomes, or have separate accounts?
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Who’s cooking dinner?
Doolan says domestic duties will inevitably be the subject of small arguments, but can also catalyse entire marriage breakdowns.
“It’s a discussion people have to have every month of their relationship, rather than just at the start,” he says. “People have an unrealistic idea of what a relationship or a partnership actually means. You can maintain a healthy one by constantly checking whether you are fulfilling your part of the bargain.”
Set the rules before you get married, Edwards suggests, to avoid disappointment in the long run. “Everybody has a different expectation about domestic duties,” she says. “But hopefully people are able to work through that sort of thing.”
The de facto couple
It creeps up faster than you think. In Australia, you only have to be with your partner (and most likely living with them) for two years to be considered a de facto relationship. Once you have passed that threshold, you have got the same rights as a married couple.
“Often the biggest dispute in de facto relationships is whether there was a de facto relationship at all,” Doolan says.
“It’s easy to know when you got married because someone handed you a certificate and you remember that person dressed in white at the front of the room.
“But when you are de facto, suddenly you have to work out when you went from boyfriend and girlfriend or girlfriend and girlfriend or boyfriend and boyfriend to a de facto relationship. It is a really difficult legal question.”
It is a particular issue for couples later in life who may have coupled up for companionship, but do not realise it is legally binding.
Perhaps unsurprisingly, it is most often the man who argues the relationship was never that serious, Doolan says.
“I’ve been in cases where we have gone for days just on the question of whether these parties were actually in a de facto relationship rather than in a personal relationship, and it has got a huge legal effect,” he says.
There are three arguments most likely to end a relationship. Sex, money and time spent with one another.
Marriages (and divorces) are made much easier when all three are discussed from the beginning before plans and promises are made. Pour a glass of wine, pull out an Excel spreadsheet and be brutally honest with each other.
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