Australia: Negotiating with your former spouse in a family law dispute

Last Updated: 31 January 2018
Article by Craig Turvey

In my experience, clients often spend too much time focusing on the motivations and behaviour of their ex-spouse and how this might impact negotiations. Sensible negotiation preparation involves reflecting on your own emotional triggers and how these might provide a roadblock to resolution.


Put simply, negotiation is a dialogue about conflict aimed at reaching an agreement. We negotiate almost every day of our lives – whether this involves asking your children to do something they do not like, trying to pay at a restaurant when out with friends, or dividing mundane household chores between members of a household.

As we do such things frequently, little thought is put into how we should behave. We do not need to be told how we should negotiate as we know by experience how to obtain positive outcomes. For example, if you are trying to pay a bill for your friends at a restaurant, you will not yell or make threats if they attempt to pay. Instead, you might say they can pay next time or it is your turn to shout.

We know instinctively that negotiation involves compromise. Negotiating parties must make concessions to reach an agreement; further, our desire to maintain a relationship with the other parties reflects the extent of the concessions we make.

However, negotiating with an ex-spouse can be a very different and trying experience.


Separation is one of the most difficult experiences we can go through. We cannot instantly unwind the memories shared with our ex and there is almost always anger or hurt experienced by both parties.

While together, you may have negotiated issues by trying to reach a mutually beneficial outcome because you loved each other. Now, in the midst of dealing with the emotional aspects of separation, you may also have to negotiate very serious issues with an ex who you may no longer love, or who may no longer love you.

Negotiating can very quickly turn from a mutually beneficial approach to a win-lose outcome. ('I hate him, I'm not letting him win this time!').

When I began practising in family law, I noticed that many of my clients were so engulfed in anger or emotional distress that their attempts to negotiate were ineffective, or worse, detrimental to their own cause. For example, clients, despite my advice, have walked away from negotiated outcomes, which were better than a court would award, because they believed they deserved a different outcome and wanted to make the other party 'pay'.

Such a response is not logical; it is driven by emotion. You may dislike your ex for perfectly valid reasons. However, it is important to acknowledge your own feelings and emotional triggers, and to not allow them to interfere with a legally-sensible resolution of your issues.


I strongly recommend you read an article written by Justine Woods here which outlines some very sensible recommendations for newly separated couples.

When clients come to see me, I recommend they speak with a counsellor, at least initially, whether to simply vent to an experienced professional or to assist in the management of any underlying psychological trauma. Do not lightly dismiss the emotional impact of separation, or think that a counsellor is only helpful for people with serious mental health issues.

Consider if there are any emotional barriers that may create issues for you in resolving conflict with your ex. For instance, in one mediation the spouse on the other side desperately wanted a family heirloom returned to her as part of the settlement. She was so distracted by her desire to retain the item, without wanting to acknowledge this and risk my client perhaps saying no, that the mediation stalled for hours. Eventually, the mediator ascertained that this was a significant issue for her and we resolved it (and my client never wanted the item!).

To minimise your ex's emotional responses, try to refrain from domineering or self-serving behaviour. Always consider the effect your behaviour may have on your former spouse; even if only because it may prevent you from obtaining the negotiated outcome you want. Think of how you may have reacted previously when receiving an angry communication from someone; did it make you more, or less, inclined to resolve the issue with them? For most of us it is the latter, as our natural reaction is to be defensive.

Finally, draw on the considerable negotiating experience you already have. While negotiating with your ex may be uncomfortable, try to use the same basic strategies you would in other contexts. For example, acknowledging that both of you will have to make concessions to reach agreement, displaying common courtesy towards each other, and being realistic about the range of possible outcomes. Try to treat the negotiation as a business decision; rather than getting distracted by your emotional connection to the other party.

© Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions