Australia: How to avoid court in a relationship breakdown

Last Updated: 14 April 2015
Article by Simon Creek


Family & De Facto Law
HHG Legal Group

  1. SEE A LAWYER TO GET A CLEAR & ACCURATE PICTURE OF WHAT YOU ARE ENTITTLED TO: Detailed advice on your rights and entitlements will help you to see the bigger picture in terms of what you are fighting for and whether it is worth it. It will also assist you to negotiate sensibly in mediation.
  2. ATTEND MEDIATION:Mediation provides an opportunity for open discussion about what each of you wants for the children and in terms of an overall property settlement. You may not reach an agreement at mediation, but hopefully you will leave understanding what your ex partner wants to achieve, and what they are prepared to compromise on.
  3. THINK OF YOUR PROPERTY SETTLEMENT AS A COMMERCIAL TRANSACTION: As difficult as it may be, if you are able to think of your property settlement as a business transaction, you are more likely to come to an agreement with your ex partner. You need to be focused on what is fair and equitable, what you are actually entitled to and what you are prepared to negotiate on in order to reach a settlement. Emotions need to be kept in check.
  4. PROVIDE FULL AND FRANK DISCLOSURE AS EARLY AS POSSIBLE: It is very common for one person to commence Court Proceedings because the other is refusing to provide financial disclosure. Both spouses in a family law property settlement are obliged to disclosure all relevant financial documents and information to the other. By cooperating with requests for disclose promptly, you will increase your chances of settling out of Court.
  5. MAKE AN OFFER: A genuine offer to settle demonstrates to your ex partner that you are serious about settling the matter expeditiously and out of Court. Once an Offer (and possibly a Counter-Offer) has been made, it is easier for both of you to understand what the other is asking for.
  6. AGREE THE VALUES OF THE ASSET POOL AND INDIVIDUAL ASSETS:As early as possible determine what the assets and liabilities of your relationship are worth. If a value cannot be agreed for an asset, obtain a joint valuation through your solicitor. Special rules apply. It is difficult to negotiate (and settle) without agreement about these values.
  7. KEEP THE BEST INTERESTS OF YOUR CHILDREN IN MIND: Making arrangements for the care of your children following a relationship breakdown can be difficult. It is important to remember that the best interests of the children are all that ultimately matter. Parents do not have any rights to their children; rather, children have a right to spend time with and have a meaningful relationship with each of their parents. Avoid an argument about who spends time with whom and consider what the children need in order to have a stable routine and a meaningful relationship with their mother and father.
  8. BE PREPARED TO COMPROMISE & HAVE A GENEROUS SPIRIT: It may sound trite, but a generous spirit goes a long way in a property settlement! Sometimes you may be faced with spending $20,000 on legal fees to gain $20,000 in an overall settlement, when a simple compromise might see both of you $10,000 better off.
  9. CONSIDER COLLABORATIVE LAW: A new tool available to family lawyers. Imagine you, your ex-partner, two lawyers, an accountant and a financial planner, all working together to achieve a mutually acceptable settlement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Simon Creek
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