Read a joke this morning. Joke was:

Marriage is hard, man. Marriage is so hard that Nelson Mandela got a divorce. Nelson Mandela, dude spent 27 years getting tortured and beaten everyday of his life. 27 straight years. He gets out of jail, spends 6 months with his Wife and says, I can’t take this anymore!

I think there are some factual inaccuracies in the joke (its public knowledge that the union between Nelson and Winnie Mandela was no ‘ordinary’ marriage and it’s not like Mandela had a choice about being in prison) but putting that aside the idea is that 27 years in jail was easier than 6 months of marriage.

But it’s a pretty serious concept. Relationships are hard. When you have financial pressures, sometimes that makes it harder. When you have children, sometimes that makes it harder. Certainly we hear about lots of reasons that relationships are hard, and we hear that relationships sometimes get too hard and that’s one of the reasons people separate.

So why am I writing about this? Because I have some ‘ideas’ about this issue that have some relevance from a family law purpose.

  • Consider a BFA;
  • Be sure it’s over;
  • The principles you strived for in your relationship should inform the separation process.

The first one – consider a Binding Financial Agreement (‘BFA’). This is a binding and enforceable agreement that you can enter before or during your relationship. It allows you and your spouse to reach and document an agreement about what will happen to your property and income if you separate.

You can reach that agreement when your relationship is one where you trust each other, where your communication is open and cooperative, and where you both want something that is fair for both of you. Often, when people separate, they are motivated by other factors – bitterness, guilt, sadness, panic, pride – all things that the law doesn’t recognise but that usually frustrate the settlement process.

The second one – it’s good to get advice early if you think you are going to separate, especially if you have children. However, once you understand the pitfalls of separation, be sure your relationship is irretrievably broken down before proceeding with a legal process.

In my experience it’s rare (not unheard of, but rare) that the involvement of lawyers brings people closer together as a couple. Further, there’s no point going through a protracted legal process if you aren’t sure you want to separate.

The third one – if you are going to separate, try and do it in a respectful and dignified way. If you are both candid and open with information and listen to the other’s point of view the process will be much better. Your lawyer should facilitate respectful communication that progresses the matter towards an agreement.

Court, for most people, is a last resort. People who treat each other with respect through the separation process inevitably reach an agreement more quickly and inexpensively and reach agreements that are more mutually satisfactory.

We get that marriage and relationships are hard. If you need help with separation, give us a call.

Adam Bak

Adam Bak is a family lawyer and one of the directors at Farrar Gesini Dunn. He is based on our Canberra Office and can be contacted on 02 6257 6477.