By Gianna Huesch
With all the problems besetting our family court system, worst of which is probably the huge delays involved in achieving final outcomes, is it possible to achieve a legally enforceable resolution of your issues without going to court? As each couple’s relationship breakdown and situation is so personal, it is impossible to advocate for a single approach to suit everyone. However, we absolutely recommend non-court solutions such as collaboration, mediation or settlement negotiations generally, and in fact most settlements are achieved out of court.
When you are interested in negotiating a non-court solution, the process still begins with both parties obtaining independent legal advice from a specialist family lawyer and being given detailed legal advice, so that you have realistic expectations and can conduct sensible negotiations. Such advice should include information on how the courts deal with family law disputes like yours, the principles and facts the court will consider, the likely time and costs involved in litigating and the potential outcomes, as well as provide you with details of the alternative options to going to court. For example, at this point you might consider Collaborative Practice, which is a voluntary dispute resolution process in which parties settle without resort to litigation.
If you were to go down the court path, you would still usually be required to attempt Alternative Dispute Resolution first anyway before commencing any proceedings. This is usually achieved by way of mediation so both sides can discuss all the issues in dispute. This can occur with or without lawyers. Even if you don’t reach agreement at this stage, it can be very helpful to the process as it narrows down the disputed issues and allows you to see exactly what the other party wants. If children are involved in the equation, their ‘best interests’ need to be borne in mind at all times, just as a court would do if you ultimately do end up in court.
Agreeing on the current values of the assets and liabilities of the marital pool is the first step. You need to know the values to be able to meaningfully negotiate, and if you can’t agree on the value of a particular asset, you should obtain a joint appraisal or valuation. When you are parties to a family law matter, both of you are under a duty of disclosure under the Family Court Rules 2004, so you must provide copies of all relevant information and documents to your ex and vice versa. Obviously the faster this is done, the faster you can commence negotiations. And delivering documents promptly also shows goodwill–you are willing to engage ethically and cooperatively through the process.
Settlement offers are then made, and can act as a starting point for further negotiating and counter offers being made. It’s important to be flexible and realistic when negotiating, even if there are particular assets you really want to keep, because you don’t want a situation where the legal costs of pursuing a particular asset can begin to exceed the value of the asset itself!
If the matter is complex and you and your spouse cannot agree, you may have no alternative than to go to court. But we are here to help you find the right solution for you—court or non court—so call us here at Alliance Family Law on (02) 6223 2400 –your first conference is free and with no further obligations.