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03 January 2019

Back to school from a family law perspective

If you have recently separated or are considering doing so this week, whilst also covering school books, buying enough stationery to stock your own OfficeWorks and managing the last-week-of holidays behaviour of your children, I have some basic family law advice for you.
Insights from CGW family law partner, Justine Woods

If you have recently separated or are considering doing so this week, while also covering school books, buying enough stationery to stock your own Officeworks, and managing the last-week-of-holidays behaviour of your children, I have some basic family law advice for you.

You will probably have read a great deal of material on the internet about how to have a respectful, positive, decent or even ‘transformative’ divorce. Separating via this model is regarded as the ideal, and wherever possible should be implemented as it seems to help families recover and move on more quickly from the distress of separation.

The world’s most civilised divorcing couple

However it is my observation after 22 years of practising in family law, that aspiring to be the world’s most civilised divorced couple (beaten only by Gwyneth Paltrow and Chris Martin) the minute you separate can be counter-productive.

It can feel like resolving on 31 December 2017 to eat 2.5 cups of vegetables each day, pay more than the minimum repayment on your credit card, walk 10,000 steps, limit the children’s screen time to the recommended 2 minutes a day, never shop online at work or complain about your workmates … and then by mid-January being consumed by intense self-loathing when it proves impossible to be perfect.

2 simple key rules

Instead I advise my clients to begin with modest goals. The most important but the trickiest of these goals is: Do not fight in front of the children.

This means do not fight at changeover, at school drop off, on the phone where they can hear you, or at a meal or outing you have organised with your ex-spouse and the children in an effort to prove that your heart is not broken, your life as you imagined it is not destroyed and that you can still celebrate events as a family.

This leads to another rule – ruthlessly assess what you can manage and, while keeping to the first rule, do just that.

Go at the pace of the most distressed spouse

When training as a mediator I learnt that negotiations can only progress at the pace of the slowest party. It might be that you can easily manage contact with your spouse, but be conscious that your ex may not and that post-separation agreements need to be framed for the party with the most grief and the least self-control.

For example, many parents tell me soon after separation that they are determined to do things amicably for the sake of the children. They propose spending Christmas Day together, hosting joint birthday parties, still going on the pre-booked family holiday as a family or taking their child to the first day of school as a couple.

Some people also want advice about continuing (for financial reasons) to live under the one roof while separated or about moving in and out of the home indefinitely on an alternating basis to stay with the children.

My response is always to test how realistic it is for both spouses to maintain the iron self-control that is necessary for that type of event or arrangement to work – especially in the presence of someone with whom they no longer share a future and often by whom they have been hurt deeply or whom in turn they have deeply hurt.

In time, you may well be the type of couple who can do all those things and you will end up having brunch with your ex-spouse and his or her new partner (again Gwyneth and Chris). but in the raw days following separation, it is generally wise to minimise direct exposure and keep all your communication distant but polite.

A vitally important project together

I still refer clients to the old Mom’s House, Dad’s House, which teaches people how to roll back from negative intimacy as a separating couple and to interact initially like business colleagues who have to deliver a vitally important project together (that is, the children’s happiness) but do not like or trust one another.

There are even Apps available to help you structure your communications with your ex.

These can help if you are in danger of writing to your former partner as Scarlett O’Hara’s sister did when Scarlett stole her fiance (in one of my desert island books “Gone with the Wind”) a letter –

“poorly spelled, violent, abusive, tear splotched, a letter so full of venom and truthful observations upon her character that she was never to forget it nor forgive the writer.”

Communicating in a restrained business-like way after separation may avoid you having your sincere but abusive texts and emails being attached to a family law or domestic violence affidavit and used against you.

The start of the school year is traditionally a very busy time in family law as people decide that they will not endure one more Christmas together and seek advice once the children are back to school.

Karen Blixen, herself divorced, wrote in ‘Out of Africa’ (my other desert island book): ‘There are some things that with the best will on both sides cannot be carried through.’

Without encouraging bad behaviour or self-indulgence, think of this piece of wisdom and have a realistic appreciation of what you and your ex-spouse are capable of managing at the worst time of your lives. Try to put in place arrangements that will preserve your children’s relationships and feelings of security, and your own sanity.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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Justine Woods

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