Monday, 24 March 2008

Why handling your own property settlement is a bad idea

Why handling your own property settlement is a bad idea

It looks bad, and it probably won't save money. Based on an article by English District Court judge Stephen Gerlis in The Times
Heather Mills is representing herself in her divorce proceedings against Sir Paul McCartney. It is an unusual move in a big-money case, but increasingly common in the family law courts.


There has been a lot of comment on the decision by Heather Mills to represent herself in the property proceedings against her estranged husband, Sir Paul McCartney. It is most unusual in a significant case involving such large sums. However, in more modest cases in which the availability of legal aid is limited, the family courts are seeing it happen with more frequency. But it remains a risky strategy. Here’s why:

1. You probably won’t understand how the court will reach its decision. The Family Law Act (or for de facto matters State and Territory legislation such as the Property Law Act 1974 (Qld)), under which these matters are decided, doesn’t speak of “common sense”. Instead, there are no less than four factors the court will take into consideration in its deliberations and the catch-all of “all the circumstances of the case”.

2. You won’t be aware of judicial guidelines. The Family Law Act hardly provides a definitive accounting mechanism under which these matters are worked out. Rather, the court relies heavily on guidelines laid down in major cases as to the approach that should be taken. To this must be added the important reservation that, in any event, each case will depend on its own facts.

3. “Big money” cases are a breed of their own. Forget what you've read. These cases have introduced important concepts into property settlement disputes such as “special contributions”, which are now trickling down into more modest disputes. But these concepts are not easily absorbed and understood by those who are not divorce lawyers.

4. You will be facing those who know what they’re doing. Bearing in mind that that the court does not approach these matters from a simplistic point of view, it follows that there are those who are well qualified and handsomely paid to understand how the system works and what the likely outcome will be.

5. Cross-examination is an art, not a science. Watching Perry Mason will not turn the man or woman in the street into a fully-fledged trial lawyer. There is only so much advocacy that can be learned from books. The rest is experience and flair, which can only be honed into something serviceable after several years in the business. Effective cross-examination is an art that very few are able to master to a high standard. Anything less than that standard is likely to fail to produce success. At worst, it could be repetitive and annoying.

6. Poor presentation is likely to antagonise the judge. There is no jury to impress, only one judge. His or her patience is not likely to be unlimited. Although considerable latitude may be afforded to a litigant in person, it is not the judge’s job to make up for any deficiencies there may be in presentation and argument. There is a way of doing things; you will not know that way unless you are a family lawyer. So you automatically start from a disadvantage.

7. Emotion has very little to do with it. The parties’ feelings are not mentioned in the Family Law Act as a consideration to take into account when deciding these matters. Indeed, conduct of the parties is only relevant, if it is economic, or if non-economic that there are special circumstances.

8. It’s a false economy. It will probably come as no surprise that the most common excuse for not employing a lawyer is that the spouse cannot afford it. That may be short sighted. A good lawyer ought to be able to achieve a result that is fairer and better value than a litigant struggling to do so on their own. Add to that the possibility that failure to understand and comply with court orders may result in orders for costs being made against that party and the numbers start to mount up. It’s also the lawyer’s job to try to broker a settlement in order to avoid the expense of protracted proceedings and a costly trial. Trying to do so on your own can be difficult.

9. Achieving a settlement may be harder. The court strives to encourage the parties to settle rather than go to trial. The problem is that without knowledge of what the court is likely to order if an agreement cannot be reached, a litigant in person will not be in a position to ascertain what the risks are and what kind of deal would be reasonable or unreasonable. That knowledge can only be ascertained by being familiar both with the law and the current thinking of the appellate courts, which does tend to change.

10. It just doesn’t look good. Being on your own can send out all the wrong signals: that you’re not taking the matter seriously, determined to be obstructive, penny-pinching, unwilling to compromise, just downright difficult. Is this really the impression you want the court to have?

In matters such as these, parties should give themselves the best chance. Deciding to represent yourself hardly does that. Don’t you deserve better?


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