By Kristoff Lajoie, Kabo Lawyers
“A good compromise is when both parties are dissatisfied, and I think that’s what we have here”
- Larry David, Curb Your Enthusiasm
The above quote may be a lawyer’s passing thought at the point when a family law matter finally resolves, as it is more frequent than not, that a negotiated outcome between jousting spouses can only be made by way of acceptance of a compromise – at least in the minds of the respective parties.
But if we rewind, the way to the solution can only become apparent once you understand the problem.
In modern times, divorce rates are higher than ever, and the concept of family litigation between former partners has become so common, it is an almost-institutionalised aspect of the breakdown of a marriage (it is noted that legal disputes between de facto partners are less common than married partners despite their equality under the Family Law Act).
It is fundamental to a legal dispute between former partners that they understand at least the very basics of their rights and responsibilities under the Family Law Act, as it frequently differs from what those parties believe is fair and just.
Firstly, contributions towards the accumulation of the matrimonial asset pool includes more than just money. For example, in a relationship where one party is the “breadwinner” and the other is the “homemaker”, contributions to the maintenance of the family home are commonly construed as equally valuable as the financial contributions made to pay off the mortgage over it. Thereby, a party which has contributed very little financially, may still be entitled to a proportion of the home to represent their contribution. The proportion to which they may be entitled to, however, greatly depends on the individual facts in the case.
Secondly, the combined total superannuation will almost always be equally split between the parties, applicable from the date of commencement of the marriage (or de facto relationship). The theory behind this is that parties enter into a relationship with the assumed commitment that they intend for it to be permanent (or at least very long term). Therefore, the superannuation accumulated by them during the relationship would be for the eventual benefit of both parties. Whether this theory is consistent with the parties’ respective beliefs or moral expectations, is of little consequence. If a party in a family law proceeding seeks a split of superannuation, they will be entitlement to it. Parties should take note that if they seek to avoid involving their superannuation in a family law dispute, the most effective way is to resolve the matter by negotiation (as opposed to by trial) before you are required to hand your super statements over to the judge.
Thirdly, full disclosure is not just a necessity under the Family Law Act, but failure to do so can result in a penalty being imposed upon you. If a party does not provide full disclosure of its relevant financial interests, such failure may qualify as contempt of court which can lead to financial penalty or imprisonment as well as that party having to pay the legal costs of the compliant party. Furthermore, the Court has the right to further ‘penalise’ that party by apportioning the matrimonial assets in greater favour of the compliant party.
Overall, it is incumbent upon the parties to act responsibly and maturely. Notwithstanding the multitude of cases where parties behave vexatiously and with great toxicity between each other, the Court does not exist to act as an overbearing parent to reprimand immature litigants. Nor does a lawyer have the authority to discipline parties – at least not their opposing side.
Whilst parties to family litigation may misbehave, use tricks or traps or otherwise devise strategies that will serve no purpose other than to frustrate their former partner and run up legal costs (often reducing the matrimonial asset pool), no one can impose a resolution other than either the two parties (by consent), or a judge (at trial). The law, in this regard, is relatively non-invasive and much to the chagrin of parties, a party engaging in time and money wasting tactics can seem to “get away with it” with limited recourse available.
Once litigation papers are served, it is often only downhill from that point for parties. However, there are several salient points for parties to keep in mind to best retain their sanity (and maximise their entitlement) in the course of family law litigation:
- Be realistic – the breakdown of a significant relationship does not always appear to be a significant event in a person’s life. However, under the law, the breakdown of a marriage or legitimate de facto relationship is always significant, with onerous rights and responsibilities imposed upon both parties. Parties involved in such an event should treat it with due responsibility, maturity, and pragmatism and appropriately armed with the right knowledge.
- Be patient – notwithstanding the legitimacy of urgency in some cases, where there may be parenting issues or urgent financial issues, most disputes take longer than the parties’ expectations. This is commonly because there are a number of factors to be considered that are not often thought about at the commencement of a dispute, such as:
- Progressive parenting arrangements as children grow older;
- Variations to parenting arrangements for holidays, birthdays and other social or cultural events;
- Due diligence and proper valuation on a family business and proper valuation of real estate;
- Entitlements to superannuation, life insurance policies, shares and other unrealised assets; and
- Any ongoing financial needs or future financial needs in the case of a disparity between parties as a result of separation.
- Be knowledgeable – lack of proper knowledge on the rights and responsibilities between parties can delay an effective outcome and, in some cases where parties attempt to resolve matters between directly, cause further animosity between them. A lawyer will not only provide accurate and relevant information but also will act as an objective third-party to the dispute – although note that a lawyer is unable to act for both parties and it is strongly recommended that where one party has seen fit to retain a lawyer, the other should too. It may seem costly, however, in many cases, legal representation will save costs by assisting the parties to obtain an efficient and affective resolution rather than having the matter unnecessarily drag out or become overly complicated.
While an end to a relationship may well be the end of an era in one’s personal life, it is important to maintain perspective and act responsibly in concluding the relationship with a positive view to move on, with both parties being afforded fair diligence. And, the most effective way to achieve this is to ensure you consult with your lawyer as early as possible.
For more information about Family Law including parenting, property or divorce matters, contact Kristoff Lajoie at Kabo Lawyers on 03 9663 3337 or at [email protected]