Divorce New Zealand style

Not every marriage is a happy ever after. Roughly one third end in divorce — but they don’t necessarily have to end in tears. Shelley Bridgeman talked to experts and those who’ve been though it to find out how to survive the modern divorce.

Photo / Thinkstock
Photo / Thinkstock

There was a time when it was something not talked about in polite company. There was a time when it was something reasonably rare, something that carried with it, at least for some, the stain of failure and, perhaps, a smattering of dishonour. Now divorce is everywhere. And any stigma that used to be associated with the end of a marriage has now, even in polite company, well and truly gone. It's become an acceptable, even inevitable, part of contemporary life. In New Zealand the Family Court granted 8700 marriage dissolution orders last year, making 17,400 people freshly divorced.

Yet for something so common and so accessible - a marriage dissolution can be applied for after two years of separation - many of us are surprisingly unaware of exactly how the process works. How do you know when divorce is the answer? Or should you try to save your marriage at all costs? How do you tell the children? And who will look after them? When should you see a lawyer? Will you get your fair share of the assets? How should you deal with your ex-spouse? The questions are endless. But never fear. Canvas has consulted the experts in order to bring you a step-by-step guide to navigating divorce, its prelude and the aftermath.

Criticism, stone-walling and contempt for your partner are key danger signs in a marriage, according to Debbie Penlington, clinical leader at Relationship Services (South and West Auckland), who specialises in couples and relationship counselling. "Those are things that really are incredibly damaging for the relationship so if those are there regularly it's an indication that the closeness and the connection's not there," she says.

In such cases, Penlington believes that talking through the issues, either with a trained counsellor or just a sympathetic third party, is a good idea. The Family Court funds six counselling sessions for people experiencing relationship issues. "The big picture is trying to work out what it is that the couples want to achieve. Often what they'll talk about is that it feels like they're living with a stranger or a brother or sister, there's no closeness and warmth and connection," she says.

Penlington cites leading American marriage therapist John Gottman, who believes that a high proportion of marital conflict is caused by what he terms "perpetual problems" - issues or fundamental differences that are not actually resolvable. "People need support to learn different ways of living with them," says Penlington. "Humour, acknowledging it as an issue, there are lots of ways that people can learn, if they choose to, to live with difficult problems. So it's sort of not seeing it as insurmountable."

But how do you know when your marriage is in real trouble?

"Every relationship's different and every couple will have different deal-breakers or relationship breakers. But certainly for me, violence, domestic violence, family violence, that impacts on the partners and often the children, is the one thing that I believe is not negotiable."

And, of course, empowerment and personal growth are often natural by-products of ending an unsatisfying marriage. "Going through something quite traumatic, people learn a lot about themselves, about their courage, about new ways of coping, so it's not always terrible," says Penlington.

If you do decide to split you'll each need your own lawyer to reach agreement on who gets the house, the bach, the boat, etc. "You can't have a valid agreement without independent advice, so it's a requirement under the law," says lawyer Anne Hinton, QC, a relationship property specialist. However, Hinton suggests that separating couples interested in efficiencies and cost savings may be wise to start the asset-dividing process with a single lawyer.

"If you're both reasonable people, then I think a really good idea is to both go and see one lawyer to begin with. And get advice from that one lawyer as to what they think is a reasonable outcome and then send each of you off to your individual lawyers," she says. "Use top-of-the-line lawyers as a sounding board but not as the person who's actually representing you - because they're expensive and I think it just tends to turn into a major drama."

You could pay your divorce lawyer anywhere from $500 for an extraordinarily simple agreement to $500,000 for a settlement that involves a defended hearing with evidence from both spouses as well as up to a dozen witnesses (including accountants and trustees), sworn affidavits and cross-examinations.

"Ten years ago, a relationship property case that went for two days was quite a big relationship property case. Now they can go for three or four weeks," says Hinton, who presumes that "complications around trusts" and the proliferation of the number of "extremely wealthy people" may be fuelling such lengthy defended hearings.

Hinton says that prenuptial agreements, which are becoming more common, are advisable in relationships where there is an imbalance between the two parties such as "where one person's been married before or one person's got children already or one person's got reasonable assets already or where one person is expecting to get inheritances or assets from their family."

Trusts are another way in which people try to preserve assets but Hinton warns that the person who is not in control of the assets should view these with suspicion. "Under the current law, I think it's quite important that you don't agree to any trust being set up because that introduces some enormous complications - it makes it much harder for the person who doesn't have control of the money in the relationship to then try to recover their share. You should be opposed to any assets being acquired by a trust unless you've been well advised on that."

The Property (Relationships) Act introduced a law intending to redress economic disparity suffered by the stay-at-home spouse. "That actually hasn't led to huge financial changes. There's quite a lot of resistance to the idea that someone who's played that role in the relationship should get more than half." Hinton says that splitting the assets (and, of course, the debt) evenly between the two spouses is still the key tenet underpinning relationship property agreements. "You'd think not, given the length of some of these cases, but that's the fundamental principle."

An increasingly common way of finalising relationship property agreements is to retain the services of a professional mediator who acts as the go-between between the two parties and their respective lawyers. "You'll hammer it out in a day. It might take 12 or 14 hours - and maybe [you'll] come to an agreement at 10 o'clock at night that gets drawn up and signed. That is a very effective way of resolving things."

If children are involved then the separated spouses must come to an agreement about their ongoing care. Simon Jefferson, a family law barrister, says that these solutions are tailored to fit the particular children involved. "What the law says is that the welfare of the child or the children is the paramount consideration - and it's about these children in their situation. Each situation is unique. There is simply no template," he says. "I think there's a misconception that children, particularly young children, have to be with their mother. There's just not a hard and fast rule. There's equally a misconception that 50-50 exact is the default position. Well, again no, that's not right."

Factors influencing care arrangements include the age of the child, location of the parents and, perhaps, health issues and personality of the child. The law states that the child's views should also be taken into account. "Now what weight you give those views will depend on age and may depend on maturity," says Jefferson. Words such as "custody" and "access" are no longer used. Rather a parenting order will now refer to "day-to-day care" and "contact".

"By far the most successful arrangements are those which are child-centred. In other words where the adults have the insight to put their own adult concerns to one side and focus on the kids," says Jefferson. "I have a mantra I often say to a client: 'Look, you will have failed if, when your daughter or son reaches 21 or gets married, [he or she] has to choose which one of you to invite. That will be a failure'."

Jefferson is sometimes concerned by the amount of money spent and emotional energy expended on making care arrangements in the immediate aftermath of a break-up when the children may be aged only, say, 5 or 6. "What's the prospect of those arrangements still being appropriate in three or four years' time?" he asks.

Relocation is the current "hot topic" according to Jefferson who gives the example of a Scottish woman marrying a New Zealander, settling here, having children with him and then separating. It would be only natural for her to wish to return to Scotland with the children, yet Jefferson says the law is generally not allowing this type of relocation. "That is a major issue at the moment, and causing major legal difficulties. It doesn't matter whether it's between Te Kuiti and Scotland or between Auckland and Christchurch because the distance really makes it very difficult for children to have a relationship with both parents."

So what's the best way to tell the children their parents are divorcing? Jill Darcey, founder of the Complex Family Foundation and author of Parenting with the Ex Factor, is an expert in this area. "Depending how much the two of you can stand to be near each other, it is great if the two of you can tell the children together," she says. "It gives the very strong signal that although they're about to live in a split family or a broken home, you're actually creating that essence of being cohesive immediately."

Darcey advocates the use of neutral language. "Instead of saying 'your father's an absolute scumbag who's run off with the secretary' or 'your mother's a complete drunk and I don't want to be around her anymore' just leave all that detail out and say 'life's changed and here's how we're going to go forward'," she says. "The children want to know predominantly that they will still see both Mum and Dad, they want to know that they're able to be loved by Mum and Dad - and that there's not going to be a whole lot of fighting."

In Darcey's experience, young children usually find adjusting to a separation relatively straightforward, while teenagers are more resistant to change.

"As much as I'm loath to say that there is a better time, the earlier the better." And while she advises a civil relationship between the ex-spouses, it's best not to be overly friendly. "If it's too comfortable, then the children can sometimes sit there and think 'well, how come Mum and Dad just can't get back together again?"'

Linda Johnson

Linda Johnson was in her late-20s when her husband's infidelity precipitated the end of their marriage. Despite counselling and sincere attempts to stay together, they parted ways when their son Nicholas, 14, was 6 years old. "People cheat all the time and I get that. By the time I got divorced there was no bitterness left, though," she says.

But weathering the fallout from separation and divorce wasn't easy. "Everything changed, was turned upside-down," says Johnson. She contended with small-town gossip, disapproving in-laws, an unsupportive ex - who initially cared for Nicholas every second weekend and for half the school holidays - and financial difficulties.

Now based in Christchurch, the 37-year-old drew on untapped inner resources and strengths in order to provide security for her son. "We've got to keep the home fires burning for our kids. So it's our kids that ground us. I'm always thinking about tomorrow. It's made me quite independent, I guess," she says.

Johnson, whose previous employment entailed cleaning houses and being a "dogsbody" in a childcare centre, trained and qualified as a hairdresser over two-and-a-half years. "I wanted something that my son would be proud of." Her new job provides not just a steady income, but self-esteem and a sense of accomplishment. "When women divorce and they end up beneficiaries you get shit. I'm really proud of myself for what I've done and achieved. I can stand up at my son's 21st and feel like, 'yeah, it's me who did this'."

If she had one wish it would be to finally lose the label of "divorced" when filling out the marital status section on forms. "This was years ago and you've got to wonder when you stop being divorced. Until you die - or what?" she asks. And does she have any advice for someone staring down the barrel of a divorce? "Just that it's not the end of the world. But it seems like it at the time."

Mark Firman

When Mark Firman and his wife Andrea separated nine years ago, their first priority was the welfare and wellbeing of their son Bailey, now 12. "We made a pact that we would try not to argue in front of him. And to try not to run each other down in front of him," says Firman. "You know, even though you're upset with each other, don't do it in front of the kid. We just did it intuitively, because it was never about Bailey, it was always what was happening between Andrea and me."

Firman, 45, attributes the increased household tension and eventual breakdown of the marriage on the long hours he worked as a self-employed plumber. "And when I was home I was doing quotes and bits and pieces ... But at the end of the day you don't want to sit in an empty house when your husband's not there and sit alone watching TV every night."

Both Firman and his ex-wife have remarried and the two couples, who evenly share care of Bailey, have a congenial and highly functional relationship. "I know Andrea and I have a rarity in a lot of divorces, in that we actually get on with our lives and do everything that we need to do to make Bailey's life complete. I know a lot of people who don't ... [the children] get picked up at the front gate and the parents don't talk and the kids know that and they play one off against the other," he says. "So many people turn their hate through their child. You know, 'oh, he's doing that' and 'he shouldn't be doing that'. Well, that 'he' is his father. And no matter what, you can't take that away."

Firman and his wife, Denise, have appointed Andrea, and her husband Darren Yearsley, as guardians of their two children - Harry, 5, and Bella, 3, - in the event of their death. And the two families spent last Christmas together in adjacent houses on Waiheke Island. "People do think we're weird because we get on and they can't comprehend it because everybody associates a lot of hate and distress with divorce. It is in the first sense, but the only thing that fixes that is time. It didn't happen overnight but once you get the financials out of the way, which is always the kicking point, I suppose, in any divorce ... you move on. You've got to grow up."

Mary Davenport

When Mary Davenport's first marriage fell apart, she was left with almost nothing and was forced to re-establish her life from scratch at the age of 25. "There's nothing better than having no money, no job, nowhere to live, to get you through things," she says. "I was pretty shaken at having to start again from the beginning."

But, with the support of one "amazing friend" with whom she lived for eight months, Davenport, now 41, found work at Pizza Hut; her first pay-check was a meagre $60. At one stage she held down a total of five jobs - mainly temping and waitressing. These character-building experiences eventually led her to university study; today she's an environmental lawyer. "I think I always had a nugget of grit," she says.

For the last seven years Davenport's been happily married to her second husband (who himself is divorced) and stepmother to his three children aged 21, 18 and 15. "This funny little family acts as two separate units kind of connected and so all four parties [which includes the children's mother and her current husband] in this relationship had to work really hard just to maintain a successful unit. There's just a mutual respect. I guess we all rely on each other and we did so because the kids needed everyone to work together."

Davenport, who says she was "quite innocent and naive" when she first married, believes a lack of common interests and the age gap between herself and her significantly older husband contributed to the "very nasty" breakdown of that relationship. She has no contact with her ex-husband and doesn't even know his whereabouts. "No, he was a big mistake. He's well out of the picture. I was very young when I got married."

Ultimately, through determination, self-belief and hard work she emerged wiser and more resilient from her divorce. Her philosophy is simple: "What doesn't kill us makes us stronger."

- NZ Herald

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