Brisbane’s Legal Lowdown: Is January Really “Divorce Month”?

Carla: All right, now it’s time for Brisbane’s legal lowdown with Attwood Marshall Lawyers. You know, January is often referred to as divorce month, after the pressures of Christmas and the festive season, many people find themselves quietly questioning where their relationships are headed.

At the same time, we’ve heard that Australia’s divorce rate now is at its lowest level in 50 years, which does raise, I guess, an interesting question. Does it really reflect what’s happening for couples today?

To help us unpack what the numbers don’t always tell us, I’m joined by Attwood Marshall Lawyers Family Law Special Counsel, Hayley Condon. Hello to you.

Hayley: Good afternoon, Carla. Good afternoon to your listeners.

Carla: Can I say Happy New Year? It’s the first time we’ve had you back.

Hayley: It is.

Carla: Welcome back, Hayley.

Hayley: Thank you.

Carla: I love, I don’t love, I’m not revelling in the fact that January is divorce month, but what I love is the fact that the time away gives us time to reflect. It gives us, you know, space, perhaps slow things down. We’ve got less on our plate because we’re on holidays. And then we go, we look at the person that’s across from us and we go, you’re not for me anymore.

Hayley: That is exactly right, Carla. Look, for those couples that are struggling in their relationships in the lead up to Christmas and over Christmas, January tends to be the month where they decide to end the relationship and go their own way.

The holiday period can really magnify problems in relationships, purely because it’s quite a costly and stressful time of year. And then, of course, couples are spending a lot of time together. While they might be able to hold it together over Christmas, in particular, if they’ve got children, they don’t want to put a dampener on Christmas festivities. But January is the beginning of a new year and is often seen as that fresh start.

Carla: In that intro, I said that, the divorce rate is the lowest that it’s been in 50 years. And on the surface, I guess that sounds like good news. But is it really what you’re seeing in practice? Because I know that in the past on this program, we’ve talked about the fact that… for monetary reasons and for fiscal reasons, people are staying together because it’s too expensive to divorce. So, people are separating and still having to live under the one roof because of the cost of housing or just because it’s too expensive to divorce. So, in practical terms, are you seeing this as well?

Hayley: Well, Carla, I’ll say this, fewer divorces does not mean fewer separation. And there’s a couple of facets to this. So, the first one is the prevalence of de facto relationships. There’s greater awareness and acceptance of de facto relationships in today’s society.

And importantly, recognition of those relationships under the Family Law Act.

So, some couples simply choose not to get married. Another aspect is married couples who separate don’t always get divorced. And that’s what we’re talking about. They might resolve property and parenting issues that arise, but they don’t take the final step and dissolve the marriage.

But finally, and most interestingly, is that the marriage rate in Australia has dropped considerably over the last 50 years. And I have a piece of data for you, Carla.

Carla: Interesting, because Michael has literally just texted in as you’re saying this, the divorce rate down, what about the marriage rate? More people seem to be living de facto. Michael, you’re spot on because you’re about to give us a piece of data, Hayley.

Hayley: I am. So, in 1971, we are going back a little bit, there were 13 marriages for every 1,000 residents. So just think about that. In 2023, what do you think the rate was, Carla?

Carla: I’m going to go, let’s say 8.

Hayley: You’re close. 5.5 marriages for every 1,000 residents. Now, I’m a bit curious about the data. I don’t know where the 0.5 comes from and how you have half a marriage.

Carla: Well, I’m sure there are plenty of people out there that can relate. But not to cast aspersions on the quality of their relationships, it is a strange thing to have only 5 and a half. My dad has had three marriages, so maybe like that skews the data somewhat, the average. Yeah, okay. So, five and a half marriages to every 1000 people.

Hayley: Exactly right.

Carla: So, I guess that answers the question. There are less people marrying, therefore less divorces. That makes sense.

Hayley: Well, it does. One flows from the other, naturally.

Carla: But in terms of legally, when you live with a person de facto, it’s as good as being married, right?

Hayley: Well, you have to meet the criteria of a de facto relationship under the Family Law Act. And if you meet that criteria and you subsequently separate, yes, de facto couples, just like married couples, have entitlements to pursue property settlement and spousal maintenance after the relationship breaks down.

Carla: But like you said, there’s special criteria, or there is criteria rather, that makes your relationship de facto as opposed to, are you just in a relationship?

Hayley: Well, that’s exactly right. So really, you need to be living together as a couple on a genuine domestic basis. So, for all intents and purposes, you’ve merged your lives together like you’re a married couple.

Now you need to be in that relationship for a total period of two years, that’s the bar. If you don’t qualify for that, if there is a child of the relationship, or if the relationship has been registered, or if you have made a significant and substantial contribution to that relationship and you would suffer hardship, if you didn’t receive a property settlement or maintenance, then you can make such application after a separation.

Carla: It is important to note at this point while you are here, Hayley Condon, you’re open to taking calls or questions as well if you’ve got any queries that you want answered.

If you’re thinking about this or maybe you have separated from your husband or your wife or whatever, and now you’re thinking now’s the time to draw up some papers.

If you need some advice, whatever, 0499 880 882 is the text line, or you can call through on the 4BC Open Line, thanks to watch smoke alarms, 133 882.

Hayley is here to answer all your calls and answer your questions as hopefully she can. And now I want to ask, there have been a few people that I know that have been in relationships for a very long period of time, say 10, 16, 20 years. and then they decide to finally get married later in life. How does that shift the nature of separation, I guess, if you’re looking at people who are doing that in their 40s and their 50s and beyond?

Hayley: Certainly. Well, there’s different things really to consider. A couple separating in their 20s is very different to a couple, for example, separating in their 60s. Firstly, older couples tend to be more established in life. So, there’s often more property and financial resources to divide in a settlement. Secondly, the next issue is really the working life that’s left. And a property settlement later in life can potentially have a much greater impact on the lives of the couple. And in particular, retirement opportunities as they don’t have that extended working career to rebuild the finances. And then of course, there is always the blended family dynamics.

Carla: They’re fun.

Hayley: Oh, they are.

Carla: They’re lots of fun. I’ve lived through many of them, many iterations of them with my father’s choice of many women. Now, what about living under the same roof? So, you’re separated, but like I said in the intro, perhaps it’s too expensive to divorce, but you’ve separated, you’re living under one roof. What sort of legal complications are there when you do decide to legally divorce or when it comes to property matters, that sorts of thing?

Hayley: So hold on, Carla. Is that apart from the stress of living in the same household?

Carla: I can’t even imagine it. Like if you don’t, if that person makes your skin crawl so much and you no longer want to be with them, but you’re forced to live with them because of, for financial reasons, I can’t even imagine what that would be like to have to navigate that. But yeah, you’re right. But from a legal perspective?

Hayley: This is a very common scenario, unfortunately. Sadly, many separating couples simply cannot afford to maintain two separate houses when they’re going through a separation and they’re forced to live together.

If that is the case, there is no real legal impact per se, except for when it comes to applying for divorce. So if people are living separately and apart under the one roof, for any portion of that mandatory 12-month separation period before you apply for a divorce, it simply means they have to put more evidence and information before the court when they make a divorce application to satisfy the court that, hey, we were really separated. We weren’t living as husband and wife.

Carla: Right. And despite being right under the one roof. On the text line 0499 880 882 anonymously. Is there any such thing as fault deciding the breakup of assets in divorce nowadays? I guess fault, like maybe infidelity or whatever.

Hayley: I suspect that’s what your listener is referring to. No. In Australia right now, and for quite some time, we have a no-fault system. So, it’s not like days gone by where you might have to show abandonment or adultery or something like that to have a basis to apply for a divorce. Now, it’s simply, in order to apply, you have to show that there has been an irretrievable breakdown of the marriage.

Carla: Okay.

Hayley: All that means is that you’re separated for 12 months and only one party has to hold the view that there’s no reasonable likelihood of you living together as husband and wife again. You don’t require the permission of the other spouse to apply for divorce.

Carla: What about the other part of that was about the division of assets? Is it still no fault?

Hayley: It’s a no-fault system.

Carla: Wow.

Hayley: When we look at property division, the court generally applies a very structured process under the Family Law Act. In general terms, it involves several steps. Firstly, the court has to decide, is it just and equitable to even make a property settlement order.

They’re actually not required to. The second step is you need to determine what we call the property pool. What assets, liabilities, super, make up the pool, and what is it actually worth?

Then the court will look at things like contributions, financial, non-financial, homemaking, parenting, and assess that overall, globally, over the period of the relationship, generally as a percentage.

The next step is to consider future needs. Should, out of that percentage division, an adjustment be made for either spouse because they have greater future needs.

So, for example, they might be older and have a shorter working career. They might have some serious health issues. One parent, or one party I should say, might have the care of young children. So, it’s things like that that are considered and then an adjustment can be made. That’s generally the process overall.

Carla: For our listeners, just finally, Hayley, who might be feeling stuck in their relationship, but they had their time over the holidays to reflect and might be thinking about now’s the time to get out of jail free card. What’s important for them to know about their options, I guess, and to keep in mind when facing a separation?

Hayley: Well, firstly, separation does not have to be acrimonious. And it does not have to result in costly and stressful litigation before the court. Separating couples can resolve their matter amicably and cost effectively if they choose to be reasonable.

Carla: Yeah, but that’s, you know, when the matters of the heart, when it’s matters of the heart and principle and a heart has been broken, that’s very hard.

Hayley: It is very, very difficult to do. But you also have to think of the financial considerations of allowing those emotions to take hold and really drive the separation process.

Carla: Yeah.

Hayley: The second aspect is obtaining legal advice doesn’t mean you have to act on that advice immediately. Generally, in the first meeting, it’s about getting information, understanding the process, understanding your entitlement and formulating a plan.

And number three, be very careful what you post on social media. Facebook.

Carla: What?

Hayley: Instagram, TikTok.

Carla: You’re telling me I’m going to have a digital footprint that’s going to last forever and you’re going to regret something that you put on there slanderous about your other half?

Hayley: I know, Carla. It’s breaking news. It’s a real surprise, isn’t it? But let me tell you how often those communications that get posted in a fit of rage can end up as evidence before a court if things turn nasty.

Carla: And they hold up?

Hayley: Well, at the end of the day, let’s say it’s an application for a domestic violence order.

Carla: That I get.

Hayley: And the person is indicating that they’re being harassed and intimidated. Those posts can support.

Carla: Yeah, but that makes sense.

Hayley: Another example can be, if we’re looking at evidential issues, there might be a particular issue in dispute to do with a parenting matter, which is relevant for a party’s capacity to parent for a court to consider. You start oversharing on social media, those posts can be used to potentially support the other parent’s position.

Carla: That is fascinating stuff. Hayley Condon, I really appreciate it. I love it when you come in here and share with us all your knowledge. Of course, we can catch up with you at Attwood Marshall Lawyers. Thank you so much for your time. Like I said, I learned so much.

Hayley: Absolute pleasure, Carla.