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Category: Legal

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How does mediation work?

For many couples, mediation is a crucial step in reaching an agreement. It’s when an independent person helps you negotiate your financial and property settlement and parenting arrangements.

Fighting out your agreement in Court can be drawn-out, costly and stressful. Mediation is a dispute resolution process designed to keep your matter as amicable as possible and out of Court.

Family mediators in Australia have to be accredited Family Dispute Resolution Practitioners (FDRPs.) They work to facilitate discussions, problem solve and promote understanding to help you reach an outcome that works for both of you.

The agreement you reach through mediation isn’t legally binding. You need separate lawyers to draft what you’ve agreed into consent orders and submit them to the Court, where the agreement is checked to ensure it’s fair for everyone involved.

Mediation can take several forms.

Guided Separation

Guided Separation is a form of evaluative mediation, which means you work with a mediator who is both a qualified FDRP and a practising Barrister or solicitor. We call them Guides.

While the Guided Separation mediator is a qualified lawyer, they are not representing either of you. They are not on your side and not on your partner’s side. They are on the side of fairness. Their legal qualification means they can answer any question about the law, provided it is requested by both of you and done in an impartial way.

The Guided Separation program follows a process of straightforward steps. Your starting point is a questionnaire that you both complete. Your answers are then used by the Guide to create a discussion draft of the agreement for you both to consider. This is used as the basis of your mediation. You also decide on the target date to complete your agreement. You have a path for progress and a clear timeline that suits your needs and goals. Typically, this is the fastest and most amicable way to reach an agreement.

After Guided Separation, independent lawyers are required to convert your agreement into the relevant legally binding instruments like binding financial agreements or applications for parenting or property orders.

Traditional FDRP mediation

In a traditional setting, you work with a non-legally qualified FDRP who facilitates conversations between you and your ex-partner. They can help you work together but can’t answer your questions about how the law operates or what a fair range of outcomes might be in your circumstances. You work with your own lawyers so you understand your rights and entitlements and the long-term effects of your decisions.

This approach can work if you, your partner, your mediator and your lawyers all work towards the same goal and have the same de-escalation mindset and if the advice is sensible and realistic. But there are a lot of moving parts. A pain point of traditional family law is that it can be costly and stressful. The back and forth between lawyers and mediators can create disagreements that didn’t exist before if not all parties have the same approach.

Court-ordered mediation

If you’ve failed to reach an agreement through traditional FDRP mediation or legal representation, your case may escalate to Court. The judge can decide that your failure to agree is due to a relationship issue rather than a legal one. In this case, they can order you to undertake court-ordered mediation. Even if you’ve attempted FDRP mediation in the past, the judge can still mandate mediation again.

You’ll both sit in a room and work with your lawyers and a court-appointed or private mediator until you both compromise and reach an agreement. In this setting, the lawyers usually draft the agreement during the mediation.

This process often occurs at the end of an incredibly stressful and costly period where you’ve both paid thousands for lawyers. Matters have escalated and headed to Court, only to end up with you both back in mediation to reach agreement.

Mediation exemptions

Mediation is not appropriate in some cases where there is a legal reason for a Court appearance. According to the Family Circuit and Family Court of Australia, the following conditions may mean you’re not required to undertake mediation:

  • in an application for parenting orders, if there are allegations of child abuse or family violence or a risk of child abuse or family violence
  • in an application for financial orders, if there are allegations of family violence or a risk of family violence
  • for urgent applications
  • if you would be unduly prejudiced if you were to complete mediation
  • if one of you has filed a previous family law application in the last 12 months
  • if you’re applying for divorce only
  • if the proceeding is a child support application or appeal, or
  • if the proceeding involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act 1966.

If none of these situations applies to your separation, then mediation is something you’re likely to encounter to help you work towards an agreement.

At The Separation Guide, we advocate for early intervention.  We encourage separating couples to seek assistance from a mediator sooner rather than later. This can save both of you money, time and stress, leaving more in your asset pool and allowing you to move on as quickly, calmly and fairly as possible.

Our 3-minute Q&A can give you a pathway for separation, and let you know if Guided Separation will suit your situation.

The Separation Guide aims to make separation and divorce simpler, more manageable and less stressful. To find out more about how one of our Network Members could support your separation, take our free 3-minute Q&A.

Disclaimer
The information in our resources is general only. Consider getting in touch with a professional adviser if you need support with your legal, financial or wellbeing needs.

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Social media and separation: proceed with caution

Over 20 million Australians are active social media users. It’s everywhere. We freely share our thoughts and feelings. We share life events. We share our achievements. And we share our disappointments. When you separate, there’s a lot going on. It’s tempting to post about your separation and your ex-partner on social media.

But it’s important to understand the emotional and legal implications of sharing information publicly. No matter how you feel in the moment, there are some things you should consider when posting online.

Be respectful of your ex-partner online

Consider when you should announce your separation or update your relationship status. It’s important to respect that there were two people in the relationship, and any public announcement should wait until you are both ready.

Be mindful that people heal at different rates. You might be ready to pop some champagne and celebrate the new you. You may even have a new partner. But your ex may be in an earlier stage of grief and healing over your break-up. Certainly celebrate if that’s where you’re at, but don’t rush to broadcast it online.

When you do announce your split, be brief. You’re not obliged to explain in detail why you’ve separated. If you want to avoid questions, say in the post that you need space and time before you share more.

Who is reading your posts?

Remember that it’s not just your close friends who follow you on social media. Mutual friends in your relationship, in-laws you want to keep in your life, colleagues you wouldn’t normally share intimate details with or potential employers could all be the audience for a post directed towards your ex-partner.

Do you have children? They may be too young for a smartphone now, but they will undoubtedly be tech-savvy enough to look back through your profile when they are older. Leaving a digital record of your feelings about their other parent could cause resentment and anger later.

Understand that posts could be used against you

Anything you share on social media about your separation or your ex-partner could be used against you in a legal setting, even if you don’t send it directly to them. Mutual friends may share the content you post. If your case escalates, this content could be used as evidence. This applies to texts and emails as well.

Feelings can run high in a separation, but try not to post or send anything when you’re angry. And always consider how someone will interpret what you say, even if you’re being flippant.

Consider the possibility of reconciliation

Not every separation is permanent. One in five couples who separate get back together with their partner. Be careful writing posts that you may later regret.

This extends to friends and family of separating couples. You might feel angry towards the ex-partner of a friend or family member, especially if you think they were the one ‘in the wrong.’ Be mindful that you may damage your relationship if you’ve expressed your feelings about a friend’s ex online and they get back together.

Seek support in private online groups

Private groups on social media can be a great forum to chat with people who have a similar experience to you. Separation can be alienating, especially if none of your close friends has been through it. It’s healing to know you’re not the only one, and there are others out there who can give you advice.

Even if a group is private, don’t share any specific details about your ex-partner or children. If you ask for advice, frame it in a general way.

Keep parenting arrangements private

Consider your children’s privacy when posting or messaging through social media. Think about using a co-parenting app designed for separated parents.

These apps help you manage your care arrangement and include messaging, shared calendars and shared expenses. They are designed to keep communication amicable and your information private.

The Separation Guide aims to make separation and divorce simpler, more manageable and less stressful. To find out more about how one of our Network Members could support your separation, take our free three-minute Q&A.

Disclaimer
The information in our resources is general only. Consider getting in touch with a professional adviser if you need support with your legal, financial or wellbeing needs.

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What happens to my superannuation when I separate?

It’s common for separating couples to have different levels of superannuation. How you split your super in your separation sometimes comes as a surprise.

It’s important to understand that superannuation is considered property in a separation, and you both must include your super in your pool of assets. You should also understand your rights to your portion of the split.

We asked family lawyer Samantha Miller some common questions we get from separating couples about how family law legislation views superannuation in separation.

What happens if I’ve been a primary caregiver and missed out on years of earnings and super contributions?

In a property settlement, the law looks at the contributions you’ve both made to all of your assets, including your superannuation, property, other investments, and belongings. The law thinks about the direct financial contributions and indirect contributions to those assets.

For example, one person stayed home to look after children so their spouse could go out and make money and contribute towards superannuation. These contributions are considered equal, so the superannuation entitlements are considered equal.

What happens to my super if my ex is caring for our children more after we separate?

The law looks firstly at contributions during the relationship and then at each person’s future needs and earning potential. This includes the impact on someone’s future career if they need to care for their children.

It’s common for the person who has taken a greater share of the care of children during the relationship to have a lower income and to have contributed less to their own superannuation. Post-separation, caring for the children is more costly, and it also impacts the ability to earn and reestablish superannuation and financial position.

So, the law will often award a greater share of the asset pool to the parent with a lower income and a greater share of the children. Remember, the asset pool includes both of your super balances.

What happens if my partner received employer contributions while I was a sole trader or business owner and I didn’t make contributions to my super?

Just because one person didn’t contribute to their superannuation doesn’t mean they’re not equally entitled to the pool of assets.

If the money existed and was used within the marriage for the couple or family’s benefit, it would be counted just like any other asset. Each person would have the same entitlement to the asset as if they’ve contributed to it throughout their relationship.

What happens if I’ve contributed ten or twenty years of superannuation to my fund before entering the relationship?

The initial contribution, or what each party brought into the relationship, is considered in a split. That may give one person a greater pull on the assets.

If the relationship is around five years or shorter, initial contributions are given more weight. If a relationship breaks down very early on, then a settlement will often try to put the people back into the same position that they came into the relationship.

However, if a marriage is 20 or 30 years long, the initial contributions are generally not given much consideration.

What happens to any super built after the official date of my separation but before my settlement is finalised?

The couple’s entire pool of assets is included in the split when legally binding documents are lodged with the court to finalise your financial and property matters. Legally, people must disclose their current position on that day.

Someone can make arguments about why the Court shouldn’t include it. For example, it arose post-separation. But if one party has less superannuation, it’s probably because they had a greater share of childcare, and there was a disparity in their income.

If my super was released early when we were together, how are my entitlements affected after we split?

If a couple released superannuation during the relationship, it will be assumed that it was used for the good of the family unit, and it just disappeared. The couple may have used it to pay off the mortgage or just spent it, and it’s no longer in the asset pool. If it was spent post-separation for entirely personal needs, it might be notionally added back into the asset pool and notionally divided.

The legislation is designed to provide an equitable split of assets based on your contributions to the relationship. Our expert Network Members are qualified to help you get to a fair outcome so you can get on with life with a fresh start and hopefully some financial security around your retirement.

If you want to know more about splitting assets in separation and get some advice about your circumstances, complete our 3-minute Q&A. The Q&A asks you questions to help us find out about your situation. We can send you resources to read and listen to relevant to your needs. And when you’re ready, we can put you in touch with the right professionals.

To hear the full discussion with Samantha, listen to our podcast Separating with super.

 

The Separation Guide aims to make separation and divorce simpler, more manageable and less stressful. To find out more about how one of our Network Members could support your separation, take our free 3-minute Q&A.

Disclaimer
The information in our resources is general only. Consider getting in touch with a professional adviser if you need support with your legal, financial or wellbeing needs.

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