Thursday, 15 January 2009

Going to court

There is a perception that when people split up it is inevitable that they will go to court, about something, and that their lawyers will encourage them to go to court.

In most cases, nothing could be further from the truth. Most family lawyers want to help their clients get on with their lives and not be bogged down in a never ending, bitter court case. Whilst they can work the occasional miracle, family lawyers and judges are not miracle workers. They cannot undo in a number of days or weeks or months what it has taken a couple to do often over very many years.

What do people argue about?

In terms of legal disputes, when couples split up, they argue about:
  • money
  • kids
  • safety
  • ending the relationship

Money

These can fall into three categories:

  • property settlement
  • spousal maintenance (although this does not apply in all relationships)
  • child support

Property settlement disputes are usually settled without going to court. Most of the time, people reach agreement between themselves, with some assistance from their lawyers. Despite some people saying that family law matters are matters of relationships, not matters of law, an informal property settlement can lead to financial troubles. Often formal property settlements are needed to provide protection for stamp duty exemption, capital gains tax rollover relief, or for financial certainty.

Sometimes it is necessary to start court proceedings about property settlement or spousal maintenance to avoid a time limit.

Good family lawyers encourage their clients to settle and not to litigate- except as a last resort. With money disputes, this is very easy to calculate-what percentage of the property pool are the lawyer's costs going to be? What difference are the parties apart on property settlement? What is this in real money (as opposed to percentages)? How does this real money compare with the costs that have been incurred or are going to be incurred to go to court?

Parties need to ask themselves: "is the deal one that I can live with?" It doesn't have to be perfect - dealing with an ex, and trying to compromise means that deals rarely are perfect.

Spousal maintenance claims are taken to court much more rarely- in part because the ability to get spousal maintenance out of the former partner might be very low, and the cost of doing so (compared to the cost of what may be obtained) might proportionally be very high.

Child support claims are, in the scheme of things, occasionally brought before the courts- but the great emphasis is going through the Child Support Agency, either formally or informally.

Fighting about kids

Most parents manage to sort this out, without involving lawyers, or if lawyers are involved, lawyers are very much on the periphery. This is how it should be.

With the exception of those cases involving allegations of domestic violence or child abuse, or in urgent cases, the Family Law Act provides that the parties before they go to court must obtain a certificate from a registered dispute resolution practitioner. To get a certificate requires both parties to attend dispute resolution first, or at least be given the opportunity to attend. Dispute resolution used to be called counselling or mediation.

The practitioner in filling out the certificate has a number of options including stating whether or not each party has made a genuine attempt at settling. Obviously if the certificate states that a party has not made a genuine attempt at settling, then that certificate might be used later on against that party.

Unfortunately, the cases that are litigated, and involve the most protracted litigation, are those cases where, in the words of one former judge "a party has not listened to good legal advice, or worse, where both parties have not listened to good legal advice".

Litigation should be avoided wherever possible. Things happen in litigation that could not have been predicted by either of the parties that can cause long standing and possibly permanent damage to either of the parties (but usually both) or worse, to their children. While litigation should always be seen as the last resort, when all attempts to settle have failed, or the need to protect children is required, then unfortunately, sometimes litigation is needed.

Safety

It is sad, but many Australian relationships are characterised by the use of domestic violence. As part of safety planning, it is often necessary to go to court to obtain domestic violence orders.

Ending the relationship

This is simple- the relationship as a couple may have ended when the couple split up. For those recognised under Australian law as married, the married relationship only ends when they are divorced. A divorce application can only be made 12 months after final separation. For those living in de facto relationships- the relationship ends on that final separation. No court order is required to say that it is over. It is important though to get advice about property settlement and spousal maintenance time limits- as these kick in following the final separation or divorce.

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