As lawyers, accountants and financial planners, you are often the first to know of a client’s intention to separate from their partner or spouse, or one of the first people to be told of a separation. For your clients who want a ‘no court divorce’, and wish for the process to be as amicable as possible, it is not always as straightforward as most would hope.
If a client has not yet separated from their partner or spouse but has raised concerns with you about this prospect or hinted to you that it may be coming, it is important for them to get specialist advice into their situation. When people come to us early on, before they have separated, it is sometimes so they can get some insights into how they should approach their communication to the other person about ending the relationship. Other times it is to determine where they would stand if they were to separate. More generally though, people come to us to get an understanding of how to manage this process as well as possible and avoid having it end up in Court.
In our work as family lawyers, we see the ways in which family law matters end up in Court. I wish to share with you the four key factors that are essential in helping people get through the separation and divorce journey without having it all end up in Court.
1. Avoiding Escalation
The best way for anyone to avoid the need to go to Court during the property settlement process, is to seek advice about what they are considering doing. We see what often creates ‘escalation’ or escalating moments. Sometimes it only takes one error of judgment, a poorly worded question or statement to turn an amicable separation into a high conflict one. This is because in any relationship breakdown, there are emotions attached to the loss.
Despite many separating couples having every intention of ending their de facto relationship or marriage well, it is often the conversations or actions that people don’t foresee that could create issues, that so often are the catalyst for a challenging divorce process. As an example, in a situation where one person wishes to express their wish to separate, how this conversation is timed and approached is only the first of a number of potential issues that we see lead people toward having to have the Court involved. Sometimes this creates significant conflict from the very beginning that they cannot come back from.
That being said, even when both parties agree to separate, there are a number of ways in which an escalation can occur. For instance, if someone were to close off access to a bank account, unaware of their obligation to provide financial support, thinking this action was acceptable given their separation, that may well escalate and the chances of any ongoing discussions or negotiations become hard to get back on track.
While these are only some examples, there is a range of ways in which escalation can occur. Good family lawyers will ask lots of questions about them, their children and their former partner or spouse, which helps get some insight into their relationships, style of communication and coping and their circumstances. This can go a long way in supporting them to identify potential instances of escalation and helping them in their goal of a no court divorce.
Where communication is poor and people say or do things that lead to a loss of trust, then it can become quite difficult to negotiate amicably.
Open and honest communication is important to keep this process as amicable as is possible. Once they have had legal advice about how to approach the process and how to get to a mutually suitable outcome, it becomes a joint problem to resolve. As long as the will is there to potentially get to some mutually beneficial outcomes in some situations, open and honest communication is the best approach.
3. Values Aligned Advisors
If your clients have already separated, we always recommend they do some research into the advisors they are looking to engage as well as their existing advisors, to determine whether their style is consistent with their needs and goals of a ‘no court divorce’.
If your client has a reasonable level of communication with their former partner or spouse, and is wanting to have an amicable process, they will benefit from only having advisors who will support that approach. Those clients will benefit from having advisors who are open to taking a cooperative or collaborative approach to the process, with the goal of potentially finding some mutually beneficial outcomes, in some situations.
This can help them to come to an in-principle agreement that their advisor can then formalise for them, or assist them through an alternative dispute resolution process, where appropriate.
That being said, even if they need some help to get to an agreement, through alternative dispute resolution methods such as mediation or collaboration, that is a more likely path to assist them to resolve any impasse they are faced with. It is important they know that just because someone gets legal advice, it doesn't mean they are headed for Court. Going to Court will be considered as a last resort for a values-aligned advisor.
4. Proactive Planning
The final factor to help your clients with a 'no court divorce' is a preventative measure. That is, to ensure they have a financial agreement in place, during the early stages of their relationship, even if that is after marriage.
If you have clients who are in the early stages of a relationship, suggesting that a financial agreement might be appropriate for them to consider, especially if you have clients who might be an older couple who have been married previously and have adult children and one, or both of them are coming into that relationship with some significant assets.
In the event of a separation, having a Binding Financial Agreement in place is a way to proactively plan and in essence say, ‘Let's reach an agreement now, which we can document, about how we're going to manage our finances during the relationship and what would happen in the event of a separation’.
A Binding Financial Agreement, when put together correctly, provides a clear process to follow and is far less likely to end up in a dispute if the relationship does not go to plan.
Aiding a ‘No Court Divorce’
For any client embarking on the separation and divorce process, having their family law issues end up in Court can create no end of problems. The effects can be far-reaching, including impacting any businesses they own, including the flow-on effects for business partners.
Getting specialist legal advice early on to understand what could be a problem, as well as getting an understanding of the parenting and property settlement processes, rather than making those decisions unknowingly and based on emotion that may provoke an escalation with the other person, they can become informed about the options available to them. It will also allow them to better participate in the process and avoid ending up on the path to Court.
For any client going through separation and divorce, they are going through a period of significant change. Having their parenting or property matters end up in Court only creates additional disruption and stress to their lives. It is also incredibly time-consuming, expensive and there is also the emotional toll for everyone involved, particularly if they have children.
As their trusted advisor, you will often become aware of any separation or intention to separate, early. While you can help them realise the value of thinking about certain steps strategically, it is helpful at these early stages to seek some pre-separation advice to arm them with information and education around what separation, divorce and the process might look like in their unique circumstances.
Your clients, any person, in fact, may be at risk of making decisions that are reactive and emotionally based and may inadvertently antagonise the other party. Specialist advice helps anyone with the intent of an amicable separation to be more likely achievable. It is unfortunate when Court could have been avoided if certain words, actions and timing had been more broadly considered with the help of people who see how these situations unfold every day.
Even if they have already separated, even if they feel they are not ready to engage lawyers, it is the upfront advice to assist in making informed decisions, prior to or shortly following separation, that often goes a long way in avoiding these issues that contribute to how these matters end up in Court.
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Phillips Family Law is an award-winning Family Law practice serving clients across Australia and abroad. Regardless of where you or your clients are in the decision-making process, we help people become informed and aware of their options. To discuss your situation confidentially, phone (07) 3007 9898 or secure a time by filling in our confidential form here.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.