Family law, separation, divorce - they are all terms that many avoid and shy away from, but which 1 in 3 will face at some stage in their lives. Did you know that 1 in 3 marriages end in divorce? It is not a statistic that makes you feel warm and fuzzy, but it is one that you should stop and think about.
A phrase that we, as family lawyers, hear all too regularly, is from clients who say, "I wish I met with you sooner!"
It is common for parties to wait until they are entangled in a family law dispute before they seek legal advice. However, if advice is obtained early, you are often able to avoid many issues that would have otherwise ensued. This can be applied at all stages in the family law process, whether you are starting a new relationship, or ending one, or whether you are in an amicable or high conflict separation.
If you are starting a new relationship
Of course, this is a time where things are going well with your partner and the thought of involving lawyers seems illogical. However, if you are seeking to protect your assets (which is a common scenario particularly if you have already been through a separation prior), it may be time to think about obtaining a Binding Financial Agreement (more commonly referred to as a "prenup" or "BFA"). A BFA can be executed at any point prior, during or following the breakdown of a relationship.
You can read more about BFA's here.
If a separation is imminent
This is perhaps the most important time to see a family lawyer. The initial stages of a separation are the most critical and can have a drastic effect on the way a family law matter will unfold (in relation to both property and parenting matters).
Although it is important to obtain holistic advice as to all aspects of a matter, there are an array of issues that require early and specific advice. For example, which party is to remain living in the former matrimonial home? You can read about that here.
It is not uncommon, in the lead up to or during a separation, for there to be some Police involvement in disputes. This can often result in a party becoming either a Defendant or Person in Need of Protection, to an Apprehended Domestic Violence Order ("ADVO"). If an ADVO is relevant to you, it is important to be aware of your obligations, and receive advice early – including advice that is tailored to your family law situation. You can read about the interplay between family law and ADVO's here.
In matters involving high conflict, it is imperative to book an appointment with a family lawyer to obtain legal advice. Family law disputes can escalate quickly and can have dire consequences for both parties and the children. Obtaining advice early allows parties to navigate through the process armed with the tools that they need.
If you have an amicable relationship with your partner and have reached an agreement as to the division of assets (and care of the children), then it may be time to enter into Consent Orders. You can read about how to make an agreement 'legal' here.
Our property settlement checklist may also be useful.
If you have been separated for some time
It is not unusual, particularly in situations where a relationship has broken down amicably, for parties to postpone formally dividing their assets. If you have a cordial relationship with your ex-spouse, and are not encountering issues, it can be tempting to evade the formal separation process. That temptation can also present if you have been separated for some time but are worried about conflict that might occur. For that reason, you may be delaying the confrontation of how to divide your assets and/or the care of your children, in a bid to avoid acrimony with your ex-spouse. It can, however, become more complicated if a significant period passes between separation, and the division of assets. It is a common misconception that assets are taken to exist as at the time of separation – which is false. If party A and party B separate in 2010, and do not divide their assets until 2020, it is the assets and liabilities which exist in 2020 that are considered.
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.