Family Dispute Resolution, When You Separate Or Divorce Abroad
Jacky Stock
Separation and divorce happen – both at home and abroad. It is not what we plan on when we move in together, and we might even try some relationship counselling, but for some, the time comes where separation and/or divorce is inevitable.
Such changes can be traumatic and painful for everyone, particularly children. For this reason, children need lots of love and support, contact with loving family members and friends, grandparents if possible, and hopefully both parents. Having said that, parents are often going through a crisis of their own and can be less emotionally available than they would otherwise be. Living abroad, far away from established support networks back home, can also make this more difficult for all involved.
Mediation
Family law systems often encourage parents to focus on the best interests of the children and work things out as best they can before resorting to court room battles. It avoids the stress and trauma of the fight and saves a fortune in legal costs. One of the ways this is done is by encouraging mediation.
In some countries (such as Australia), mediation or Family Dispute Resolution (FDR) is mandatory before going to court, when the dispute revolves around the children. (There are exceptions to this rule, such as in cases which may be urgent and/or where there is family violence or risk of harm to the child.)
Whether or not you are living in a country that requires you to attend mediation, it is a wise idea to understand the mediation process and how it could benefit you and your family, should you wish to pursue voluntary mediation in the country in which you are currently an expatriate.
What is Family Dispute Resolution (FDR)?
FDR is a process in which an independent person helps you to identify the issues you do not agree on, consider options, and assist you in reaching an agreement regarding the children and, if you choose, the property-related issues.
The Family Dispute Resolution Practitioner (FDRP) should be impartial and should not take sides. They should be specially trained in family mediation, with the necessary expertise to assist you. Ideally, they should also be accredited (that is, they have completed the necessary training, experience and suitability requirements).*
Before you start mediation, an FDRP would typically spend some time with each of you to talk through how the process works, parenting plans, services that may be available to you, and your rights and obligations. They would usually ask you questions that allow them to determine if mediation is appropriate. Sometimes it is not appropriate and in those situations, the practitioner should explain why.
Benefits of Mediation
The benefits of mediation are considerable. For example, mediation allows you to vent and discuss how you feel in an informal, relaxed environment. If you can sort out some of the problems in mediation, it can save you an enormous amount of time, money and heartache. It is also very practical as the FDRP can help you to identify the issues, think of possible solutions and reality test your conclusions. They should be impartial, which enables them to assist you in thinking about things objectively, or perhaps just from a different perspective.
An FDRP can also assist you in communicating with your partner in such a way that issues can be resolved not exacerbated. You can be open and honest because everything you say to your mediator and in mediation is confidential and cannot be used in court (unless it falls under one of the limited exceptions such as to prevent the commission of a crime or if someone is threatened or there is child abuse).
Even if mediation does not resolve all your issues, hopefully it enables the two of you to improve your communication around the children and work through some of the problems. This narrows the issues that you need to take to court. In any event, courts in some countries might require that you put up a certificate from an FDRP to show that you have at least tried, or, if not, the reason why you have not tried.
A Parenting Plan
Hopefully you do reach agreement on how the children will be looked after. If you do, it needs to be written up, signed and dated by both of you. The agreement is usually called a parenting plan and deals with the day to day needs of the children, responsibilities of the parents and bigger issues such medical needs, school decisions, and so on. It can be changed at any time by the agreement of both parents.
Depending on the country that you are living in, a parenting plan agreement might not be legally binding. In Australia for example, a parenting plan is not a legally binding document unless you apply to court to have it made a consent order. You can do this yourself or engage a lawyer to do it for you. It then is the same as a Parenting Order made by the courts and is legally binding. As children grow and their needs change, parents may agree to vary the Parenting Order, provided the court has not said otherwise. This means that the parents do not have to go back to court every time they want to make minor changes to the agreement.
The plan should be as clear and simple as possible, so there is no room for confusion and it can deal with any aspect of the children’s lives. It is also helpful to decide now how you are going to communicate and resolve problems or changes to the agreement in the future.
The Interests of the Children
Children have the right to know both parents (not the other way round) and to be protected from harm.
At all times, focus on the best interests of the children. This can be difficult when you are going through a crisis of your own, but there are many support groups and agencies to assist you, so do try to take advantage of them.
It is also important to think about who else is important to your children, such as cousins and grandparents. They all form part of a child’s stable support structure. So, provided there is no violence or abuse, the courts presume that it is in the best interests of the children to spend time with both parents. “How much time?” is the real question.
Moving Forward
Nobody plans on separating or getting divorced. The situation is not ideal and compromise is always necessary. Recognise that this can be difficult and surround yourself with friends and professionals that can help you. Do your research – try to stay in control of the process and do not let the lawyers and courts take charge. This is your divorce and you will need to live with the consequences.
Importantly, let yourself grieve for the end of the relationship and allow yourself to move on. Even if you do not like each other anymore, try to communicate in a civil manner for the sake of your children. I will never forget reading an interview with Uma Thurman regarding her divorce when she said:
“I cannot participate in anything critical about my children's father. I just need to keep peace. I think it's fair to say that I haven't said one mean thing, and I'm not going to start now. It's terrible for my family." – Uma Thurman
Jacky Stock operates as a Family Dispute Resolution Practitioner in Sydney, Australia. Jacky spent over ten years practising law as one of the top specialists in her field in South Africa, before emigrating to Australia in 2002. She uses this considerable experience to help clients resolve potentially difficult situations through mediation. You can read about Jacky Stock on LinkedIn and/or contact Jacky via email.
* In Australia, FDRPs can be found listed on the Attorney General’s website.
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| December 2011 |
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