It may come as a surprise, but as long as there is no power imbalance between couples (financially or emotionally) then it would be more beneficial for everyone if separating couples could work things out amicably between themselves. Of course, we still do recommend that separating couples seek advice and see specialist family lawyers like ourselves in order to properly document any agreement reached and to ensure that such an agreement is put in a final and binding form. However, we would rather do 50 Consent Orders each month instead of having 50 fighting couples to deal with.
If you are an accountant, non-family lawyer, financial advisor, or just a trusted friend of a separating couple; then here are some tips to assist them in coming to an agreement without involving lawyers:-
- Each party needs to fully disclose their assets, liabilities and superannuation interests. Before one even talks about percentage splits and who is to get what, the most important step is to compile a current day matrimonial balance sheet. Any objective person (especially the parties’ accountant or financial advisor) may be well-placed to perform such an exercise and give both parties confidence that it is done impartially. If doing this part of the exercise prompts any discussions about who is to get what, try to focus both parties on identifying their property and interests, what needs to be valued and then work on completing the spreadsheet detailing all assets, liabilities, and superannuation interests.
- Once a spreadsheet is complete and everyone agrees as to what the values are, then each party is asked as to what their issues and concerns are. Have them focus on what property they wish to retain rather than the value or percentage split. Sometimes there is an obvious split (such as one party keeping the home and the other one keeping superannuation and a sum of cash) that may seem obvious to you but not to the separating couple. Look for solutions that do not involve percentages and arguments at an early stage.
- Try to find out if there is anything unusual about the relationship such as substantial inheritances, gifts, or anything else that may set off alarm bells which may require the separating couple to seek further legal advice. Of course, it is always appropriate for these clients to seek legal advice, but at this stage, we are talking about initial negotiations with a view to come to a general agreement prior to the lawyers’ input.
- If an agreement has been reached in principle, then there is no need to have anything signed as the parties may feel vulnerable (if that occurs – it is sufficient simply to print out the basis of the agreement).
- It is then imperative that the parties each go to a family lawyer and obtain their own independent legal advice – there may be the odd occasion where there is something different in the case and the lawyer will advise a party that what they agreed upon is less or more then what their entitlement is. However, it is our experience that in many of these cases, the parties are still happy to proceed with the agreement as it was reached in an amicable environment.
Remember – it is important that couples have independent legal advice. They have that right and should avail themselves of that right. However, there is no requirement that each party must get what they are legally entitled to; the family law system is a discretionary and uncertain one at times. Often, in agreement, they can be amicably reached at an early stage (through whatever means) which helps to promote some harmony in some respect between the couple, especially if they have to deal with each other in future matters concerning their children.
