Settle or litigate? What is the best way to resolve my family law matter?

Posted by Luisa-Maria Maroun on 09 July 2015

The costs associated with separating from a spouse are considerable.  Many clients relate the term ‘costs’ to the legal fees which they would be likely to incur if they decide to engage legal representation. While legal costs are one of the costs of separating, there are many more especially where there are children involved:  the costs of caring for children, the costs of establishing a second home for the children and catering for the children’s individual needs whilst they are living in each household, child support, spousal maintenance together with the usual loss of the combined wealth of the separating parties. .

A lot of the times, clients underestimate the legal costs that can be incurred by commencing proceedings and often don’t realise that the money spent taking Court action reduces the assets that can be divided between them.

A far more costs effective approach is to attempt to come to a private settlement  with your ex-partner. That process is greatly assisted where the parties follow the following guidelines:

  1. Prepare a chronology which details the history of your relationship. You should focus on key dates and include important information regarding the financial and non-financial contributions of each party to the relationship;
  2. Prepare a list of all current assets and liabilities (whether owned individually or jointly with your ex-partner or a third party);
  3. Collate documents relating to your assets, liabilities and contributions including:  bank statements, superannuation statements, share dividend statements, tax returns, pay slips, market valuations for any real property owned by the parties and so forth.
  4. Ensure that you are transparent with your financial circumstances by producing updated documents which provide full financial disclosure of your interest in any assets.

If you are able to successfully negotiate a property settlement, we strongly recommend that you seek legal assistance to formalise the agreement.. Given that separation agreements  can be very complex in nature and need to be drafted in compliance with specific legal requirements, they are best  prepared by professionals who have experience in the area. Although there are legal costs associated with the preparation of separation agreements, those  costs are significantly less than the costs of litigation. .

We also  recommend that prior to engaging in settlement negotiations with your ex-partner, you seek legal advice regarding your rights, entitlements and obligations pursuant to the Family Law Act 1975. This will assist you in making  an informed decision as to whether or not to attempt private negotiations with your ex-partner.