Many shudder at the thought of having their family law matter potentially dragged out in Court for years.
So, how can you settle your matter amicably following a separation, with (hopefully) minimal fuss and what methods are available to you to help you resolve your issues outside of Court?
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Jessica Hamilton (JH): Hello and welcome to the Family Five Podcast with Ivy Law Group where we tackle the tough family law issues in the time it takes you to drink your coffee. I'm Jessica Hamilton, I'm the Marketing Manager for Ivy Law Group, and I'm joined by my boss, Shane Neagle, who is the director of Ivy Law Group and the family lawyer extraordinaire. In this podcast, we will take a five in five approach, five questions in five minutes. Our aim is to keep the podcast light, easy to understand, and to give you some valuable information to take away with you.
JH: Hello, Hello. How are you today, Shane?
Shane Neagle (SN): I'm off the charts amazing, thanks Jessica.
JH: Off the charts. That's great. All right. So today, we are following on from our episode last week about lawyers, about self representing, about the costs that are involved with retaining a lawyer. So today what we're going to be talking about is how you can avoid having to go to court in your family law matter. Obviously, one of the ways of doing this is to try to keep things amicable with your ex-partner. So divorce and separation, we all know it's messy enough as it is, and there are probably many people out there who shudder at the thought of having to go through the courts and having their matter dragged out. So are there ways to avoid having to go to court after a separation?
SN: Like with all things in law, there's a couple of disclaimers. Well, firstly, with the divorce, you have to go to court. You have to have an application made to the court to make a divorce order. The application normally doesn't require you to go to court, but you have to involve the Court. But, you will have to go to Court, if there's children (of the relationship).
Going to other issues - the courts have been fantastic providing detailed information about property and parenting and how the parties can move forward with parenting plans and/or Consent Orders in both property and financial. There is also obviously ways with financial matters to resolve (out of Court) by what's called a Binding Financial Agreement. You do not even need to go near a Court.
The other kinds of processes, in a nutshell, and I know we've got to try to be short when we're talking in these podcasts, but one way to avoid (Court) where there are potential discrepancies between people and disputes, is there's a new concept called separation collaboration, where the advisor helps you and they kind of have some familiarity with the processes, but they're not a lawyer. You can (also) have mediation, which is a part of the Court's requirements now, that everyone does what's called Pre-action Procedures, and that includes making offers to each other and negotiating.
The next two, very quickly, one is called collaborative law. It's very a unique way of having lawyers trying to resolve the matters, and if they can't, after a period of time, they pass it on to new lawyers, which is a great way because sometimes things can get entrenched. Now the last way is arbitration, and arbitration involves an arbitrator, but only in relation to financial disputes.The arbitrator is able to give a determination about your financial matters that can then be registered with the Court and enforced.
JH: Okay, so these are all ways that you can keep things amicable with your former partner or spouse and potentially keep costs down and avoid having to have your private matters dragged out in Court?
SN: That's correct.
JH: So what do you do if you and your partner are finding it difficult to come to an agreement and you are unable to keep things amicable? What happens then?
SN: It is likely in most marriages and long-term relationships, where we've brought property together or we've got children and there's arguments going on about that where the children are to live and with whom. It's most likely that you're going to have to get legal representatives engaged to try to write to them (the other side). And that unfortunately does sometimes cause things to escalate.
What's really important (to note), and if you do involve lawyers, is to: prepare yourself, make sure you're giving full and clear instructions as you go along and get in the driver's seat, get moving with it. Be honest and lawful. I can't tell you how many times the client has done something that's unlawful and then we've spent nearly five months trying to clean things up. Be prepared and respond to the requests quickly. Understand the fees and costs of course, as you go along. And make sure you read the legal advices very carefully and ask questions.
JH: So there are some family law matters that can drag on for years. Why is this?
SN: Sometimes, the other person can be challenging and that can be because they're controlling, violent, abusive, (men or women) and (they are) not wanting to even let go. It's really funny, I often see people still continuing in their matters where we can settle them, but they've still got an attachment to the other party and it goes on and on. And I'm not a psychologist, but I've been around long enough to realise that the other person's just not ready to let go. And you everyone says, oh, it's the lawyers. And you go, well, actually it's probably not. But in the case where that person is challenging, it really pays to have someone involved who's a solicitor with skill, (and someone) that you've heard about. Particularly one who's got experience with family law matters because they are very complicated in their own way. They involve psychology and strategy. It takes a particular type of lawyer to be able to navigate dealing with someone, for example, who's a narcissist on the other side and how to disengage them, for example.
JH: Okay, so we're at time now and this is my favorite part of the podcast, the good old classic dad jokes. So take it away, Shane.
SN: Have you heard the rumour about butter, Jessica? I'm not going to spread it.
JH: Very good, Shane. Very good.
SN: Thank you, Jessica.
JH: Thanks for tuning in and don't forget to save us to your favorites wherever you listen to your podcast so that you don't miss an episode. It's important to note that the contents of this podcast are intended as a general guide to the subject matter. If you are looking for specific advice about your individual circumstances, then we would recommend getting in touch with one of our friendly family lawyers.