Common Mistakes People Make in Family Law Matters

Going through a separation from your partner or spouse is often the most stressful and difficult time in a person’s life. We are here to make it as easy as possible by helping you along the way to ensure that the arrangements for your children are appropriate and your financial future is secure.

Here is our guide as family lawyers to avoiding some of the biggest and most common mistakes that we see most days:

Seek advice from a specialised family lawyer- early!

We spend a lot of time fixing messes that could have been avoided if the party sought legal advice early on. Ideally, we suggest that people seek advice from an experienced or specialised family lawyer prior to separating. It’s never too early! During an initial consult, we can assist you to prepare and make a plan for departure and ensure that your living and financial circumstances are as you want them to be at the time of separation- without anyone else even knowing you have sought legal advice! You can then come back to us for further assistance as required along the way. We often find that people that seek advice from the very early stages end up achieving better results long term and having less conflict along the way.

Try to think about the separation like a commercial transaction (at least initially)

“Is this something you are going to be worried about in 2 years’ time?” is a good question to ask yourself. Obviously this is easier said than done, but during a separation you are making lots of big life decisions and it’s important to try and think rationally and commercially. Resolving the logistics commercially will mean you will be able to focus on rebuilding your new life and dealing with the emotions arising as part of the separation sooner. We are pretty good and telling clients what is worth fighting about and what, from an emotional and commercial perspective, you might be better off cutting your losses over.

Don’t rely on an informal agreement

Known as the “kitchen table method”, direct negotiation between you and your ex-partner or spouse can be the best way to resolve things and are something that we regularly recommend to our clients. The kitchen table method can be a quick, easy and effective way to reach an agreement about your property settlement and/or your arrangements for your children. The catch is that it’s vital, if you do reach an agreement, that you seek legal advice about documenting it. If your property settlement is not documented in the appropriate form, you are at risk of your ex-partner or spouse making a further claim against you in the future. Documenting your property settlement can also provide you with finality in relation to financial settlement and sometimes stamp duty relief on the transfer of real estate and cars. If you don’t formalize the arrangements for your children, you are at risk of your ex-partner or spouse changing them in the future. It’s important to seek advice about the pros and cons of formalizing a parenting arrangement.

Don’t allow an arrangement that is unacceptable to you to remain in place for too long

If something isn’t working, do something about it as quickly as possible. As a general rule, we say if something isn’t working for a number of weeks you should consider doing something to change it (and at the very least seek legal advice). It can be difficult to explain to the Court one year later, if something was so bad or is unsustainable, why you left it in place for such a long period of time.

You should seek advice immediately if you or your children are living in an unsafe situation, your ex-partner or spouse is threatening to relocate with or withhold your children from spending time with you, or if your ex-partner or spouse has taken funds from a joint bank account or is refusing to pay their share of a joint liability.

Consider getting a Binding Financial Agreement (or “pre-nup”) when entering into a new relationship

Although it’s probably not what you want to think about in the midst of a separation, if you enter into a new relationship you should consider seeking advice from us about getting a Binding Financial Agreement with your new partner.

Binding Financial Agreements can oust the Court’s jurisdiction to make orders regarding the division of your property (including property purchased in the future), which means you and your partner can decide at the time of entering the agreement how your property will be divided if you separate in the future. Think of it like an insurance policy, which you only need if things go downhill (but you are very grateful for if they do!) Parties to a relationship can enter a Binding Financial Agreement before they enter a de facto relationship, while they are a de facto relationship or after they get married, and the specific terms and conditions can be tailored to suit you and your partner. A Binding Financial Agreement can help you to avoid a scenario whereby you are returning to us for legal advice in the future (as much as we would love to help you more than once!) or fighting two or more ex partners in Court at the same time (it happens!)

Article By: Zoe Behrens

Family Lawyer

Zoe is a compassionate, dedicated and strategic family lawyer with a background in people management and behavioural science. Zoe’s passion for helping individuals and families navigate complex issues led her to specialise in family law. Having worked across both our Canberra and Sydney offices, Zoe has experience running complex parenting and property disputes in both the Children’s Court and the Family Court involving difficult dynamics and family violence.

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