What lessons can every day Australian’s take from Tom Cruise and Katie Holmes’ divorce? By Abbi Golightly – QLS Accredited Family Law Specialist
Despite the seemingly huge legal minefield that could have been the Cruise/Holmes divorce, it seems as though with the assistance of their legal representatives and by adopting reasonable positions, Tom and Katie have reached an amicable and speedy resolution to the division of their assets and the living arrangements for their daughter.
Whilst the Australian and American family law systems differ dramatically, there is much that can be taken from this latest celebrity divorce.
The speed at which Tom and Katie have reached agreement may come as a shock to some; it is possible that a clear and well drafted “pre-nuptial agreement” (in Australia known as a Financial Agreement) has ensured that there was little for them to argue over.
A Financial Agreement which is entered into before or during a relationship (but before separation) which details how property is to be divided upon separation can dramatically affect the steps which need to be taken upon separation. Such agreements can also make provision for the maintenance of both spouses and children, making them almost a “one-stop shop” for couples wishing to have as much certainty of their financial arrangements should separation eventuate.
Provided that neither party successfully challenges the validity of a Financial Agreement (there are limited circumstances within which such challenges can be made), all that is left to be done upon separation is to comply with the terms of the Financial Agreement. Compliance could include one party vacating the family home in return for a cash payment, the transfer of other assets such as shares or a motor vehicle, closing of joint bank accounts or the sale of a property and division of its proceeds of sale.
However where there is no Financial Agreement in place, an amicable and swift resolution can still be possible, provided that all parties approach negotiations from a reasonable position and there is no concern over non-disclosure of assets or duress being exerted upon one party to the relationship.
In relation to children’s matters, the Cruise/Holmes separation has brought to the fore issues regarding how children are to be raised from a religious standpoint. In Australia, unless the Court determines otherwise, each parent of a child has “parental responsibility” for that child. Parental responsibility means, amongst other things, the decision making ability for a child about its religious affiliation. Parents are expected to make such decisions in the exercise of their parental responsibility jointly, which can be a problem after separation.
If after separation parents cannot agree on matters which fall within their joint parental responsibility, such as which religion a child is to be exposed to, if any, it may fall to the Court to decide which parent can solely make such a decision to the exclusion of the other parent. As with any parenting Order, the Court must consider the best interests of the child as its paramount concern when making such a decision.
Here at Attwood Marshall, our focus is on ensuring that your Family Law matter is brought to a swift and amicable resolution where possible. If we can be of assistance to you regarding the preparation of a Financial Agreement (at any stage of your relationship), seeking compliance with a Financial Agreement after separation or negotiating your property settlement and/or parenting arrangements, please contact us on 1800 621 071, email firstname.lastname@example.org or click here to complete online enquiry form to arrange for an appointment with one of our experienced family law team members.