NEGOTIATING SEPARATION      By Alan Hebb

How do couples navigate the process of separation?

Separation is not just the break down of a relationship, as if that wasn’t enough! That relationship is usually at the centre of most of the decisions upon which our lives are built. Where we live, our financial arrangements, our circle of friends, our in-laws, and of course our children, all of these diverse parts of our life have that relationship in common. We take away the relationship and they all change.

Some of those changes can be made alone, but at least three issues will impact on the other person:

Where will the children live?
How to divide the property?
Should one person be providing financial support to the other and if so how much?

Who decides these questions and how are they decided?

They seem to be decided in three main ways: by the couple on their own, by lawyers and by assisted negotiation (mediation). These three ways not only overlap, they all have their place and are all needed at various times.

1.   The principle way of managing these changes is by the couple themselves ‘working things out’. This is the primary way, with the other two being secondary and supportive.

The ways couples ‘work things out’ will be as diverse as the relationships themselves. However, even when the relationship is strong and communication easy, negotiating fundamental change is challenging. Working out
fundamental change at a time of relationship breakdown is often marked by anger, hurt and mistrust. It is possible for some and impossible for others.

Despite celebrities almost invariably announcing that despite the breakup they reman ‘good friends’, it is not usual for couples to be able to negotiate these matters as ‘good friends’ might.

2.   The second way is by recourse to lawyers.

In our society we are generally very ‘rights conscious’ and quick to look at life from a legal perspective. Many people look at family breakup and immediately think ‘Family Law’, so the first reaction of many couples when
separation looms is to get legal advice. Separation has legal ramifications that need to be understood, so consulting a lawyer at some stage will be essential for most.

BUT: It is important to understand that once a lawyer is consulted, that person can fulfil different roles. They can play a secondary role by acting as a resource, a back up and a support person to consult. They can also
assume a primary role, taking control of the process by negotiating on behalf of their client and issuing proceedings in court.

Couples whose relationship is marked by violence or abuse or simply a complete inability to communicate may
need their lawyer to take on that primary role. For other couples, probably most, lawyers need only play a
secondary role.

3.   The third way is a synthesis of the first two.

Negotiating a separation with the assistance of a third party (mediator) is essentially the same as a couple working it out themselves but with the help of a structure to guide the negotiation and a third person to control the process. It also presumes and relies on the parties having access to all the support people they need from lawyers, to
accountants, to counsellors both prior to and between sessions.

In this third way, decision-making control remains with the couple but the decisions are made in an environment and during a process that is supportive and safe.

SOME HINTS FOR SEPARATING COUPLES

When consulting a lawyer, be clear at the outset as to what you want them to do and how much they will charge. Some solicitors may assume you want them to do everything. If you want them just to give you advice and act as a consultant when needed, then make that clear.

If you go to a mediator, engage one who is qualified as a ‘Family Dispute Resolution Practitioner’ (FDRP). You may not intend going to Court but if you need to go to Court at a later time in relation to children’s matters, you will need a certificate from an FDRP that you have attended mediation with them. (Some exceptions apply.)

Whoever you engage, be it lawyer or mediator (or both) ask to speak to them on the phone first to decide whether you can work with them and how much they charge etc. If they don’t have time to speak to you first they probably won’t have time later.

Separation for some seems relatively painless but for most it is incredibly traumatic. If you are finding it hard to manage, then seek out all the help you can from specialists and from friends.