Girl vs Divorce: A Woman's Guide to Justice in Divorce and Meeting the Challenges of Post-Divorce Life

INTRODUCTION

The process of separation and divorce is widely considered to be the second most stressful life event, surpassed only by the death of a loved one. With the end of a marriage there most often comes a prolonged period of emotional turbulence, accompanied by far-reaching practical challenges and lifestyle changes. Almost every area of life may be thrown into disarray. Depending on the individual circumstances, it’s common for women and men alike to experience intense feelings of grief and loneliness, and these may be compounded by anxiety if the divorce settlement has left either or both in a substantially weaker financial position – or, worse, in dire financial straits. (The whole area of divorce and its aftermath has been well researched over the years by various government departments and other stakeholders. A wide range of interesting studies and reports is readily available online.)

While I fully acknowledge the heavy toll that divorce and its aftermath take on both parties (and their children, if any), as a lawyer who practised predominantly in family law matters for a number of years I came to identify a need for a book like this, written specifically for women who are embarking on, or in the process of recovering from, a separation or divorce – but also for those who continue to face challenges and difficulties arising out of their divorce long into the future – for two main reasons.

First and foremost, I know from my own experience as a practising lawyer that after the breakdown of a marriage not all women receive a just and equitable share of the marital assets. Nor, if applicable, are they all paid the levels of spousal maintenance and child support to which they are legally entitled. (Spousal maintenance is the term used in Australia and the United Kingdom, while in the United States spousal maintenance is commonly known as alimony, and in Canada it is referred to as spousal support.) In other words, some women receive an unjust divorce settlement. Generally speaking, this happens for one of two reasons:

1.Their legal rights are deliberately violated by their husband by means of duress, fraud, the concealment of marital assets, or some other kind of dishonest or illegal strategy. This can occur regardless of whether they are aware of their legal rights, and even to women who have full-time legal representation. (See Chapter 1 for more on this.)

2.Their legal rights are not deliberately violated by their husband but they fail to enforce their rights. This can happen for a number of reasons, but the following are among the most common.

They agree to a divorce settlement proposed by their husband without first obtaining legal advice and are unaware that the terms of the settlement are unjust.

The legal advice they obtain is incorrect. This most often occurs when their lawyer has little or no experience in family law matters. It may also occur when they retain the lawyer who is also representing their husband (a grave mistake, as explained in Chapter 1).

They have been correctly advised as to their rights by a lawyer (or, not having been so advised, are nonetheless aware of their rights) but forgo those rights and knowingly agree to a settlement that is unjust. This decision is sometimes based on feelings of guilt – for example, if they initiated the separation – or simply on a desire to ‘just get it over with’, because they are so distressed by the divorce that they are unable to continue negotiations. (I have personally represented women who fall into the latter category. Unfortunately, in those cases my clients were so distraught by the separation that they chose not to take my advice that the settlement proposed by their husband was unjust and ought to be rejected. They agreed to settle on the husband’s terms to bring the formalities to an end as quickly as possible and thereby alleviate the extreme distress occasioned by that process.)

The stories of the separated or divorced women I have spoken with since leaving legal practice and undertaking research for this book have confirmed that unjust divorce settlements and their consequences are ongoing problems.

There is a crucially important fact that women need to know about these kinds of divorce settlement injustices. In many cases they are entirely preventable – and, if such an injustice has already taken place, in limited cases it can be put right. (If you believe that you have fallen victim to an unjust divorce settlement, you should obtain legal advice as a matter of urgency. Overturning injustices of this kind may require an application to a court, and time limits may apply.)

It is, therefore, abundantly clear to me that women who are considering or going through a separation or a divorce need a resource like this book that clearly alerts them to the importance of obtaining legal advice prior to, or at the earliest opportunity after, separation – even if the separation is amicable – and that makes them fully aware of the potentially disastrous effect on their future of failing to enforce their legal rights.

Second, in the course of my work as a lawyer I was regularly witness to the acute stress and emotional suffering many women experience during the divorce process. But it was also apparent that some women’s distress continued long into the future. This was particularly so in cases where the separation was acrimonious and it was necessary for the women to have ongoing contact with their ex-husband, usually because they shared the care of children.

Problems with parenting arrangements and disputes over the payment of child support – either or both of which often led to frequent arguments with their ex – made life a living hell for some women, forcing them to seek further legal advice, and sometimes to take legal action against their ex, long after their divorce had been finalised. This both delayed their recovery and significantly affected the quality of their life. Such cases acted as additional motivation for me to undertake further research into the experience of divorce as a whole and, specifically, into the practical ways by which at least some of this distress can be