Part 3 – Family Law Property Settlement – Do I have to go to Court?
Welcome to part 3 of the 4 part series of Understanding the Basics of Family Law Property Settlement.
Do I have to go to Court?
Absolutely not. Using the Family Court or Federal Circuit Court as the venue to resolve your property settlement should always be a last resort option. Sometimes, in rare cases, it is necessary to go to Court and obviously sometimes to defend actions started by the other party. However, 95% of cases do not require Court litigation and can be resolved more quickly, fairly and cost effectively by using other methods to resolve a property settlement after separation.
Why not go to Court?
Firstly, Court proceedings are very expensive. In Family Law, evidence is taken by Affidavit. This means that detailed statements and Affidavit of evidence need to be prepared by a Lawyer to represent you in Court.
Also, costs can build up over time due to the fact that matters in Court are not heard quickly and can, in some cases, take 1-2 years to even be listed for a Hearing. This delay often means a client pays greater legal costs because the more you wait the more that can go wrong in a matter.
Not only does it take time to have your matter listed for a Final Hearing but at the moment, especially in Queensland, there are substantial delays often encountered with receiving Judgments after your matter. For instance, you may wait 1-2 years to get your matter listed for a Trial and then after you go through the Trial process it might take another 6 months – 2 years before you receive a Judgment. That is a substantial period of time to spend in Court litigating when you could be doing other things.
Finally, litigation in Court only adds to the stress, emotional burdens and acrimony between separating spouses. It does nothing to enable parties to resolve issues and move on with their lives.
What other options are available to me to settle my Family Law Property Settlement?
There are many different and innovative options that are available to you to resolve your property settlement matter. All of these options have the advantage that they can be achieved relatively quickly (with cooperation from both parties) and that fair and equitable outcomes can be achieved which enable you to move on quickly with your life. Some of these alternatives to litigation include the following:-
- Negotiations – sometimes in a matter, parties may be close to a resolution but there are some issues that need to be negotiated. Good Family Lawyers will be able to pinpoint areas of contention and in some cases, will be able to resolve those matters through early and proactive negotiations. This will allow the drafting of Consent Orders to resolve the matter and enable both parties to move on quickly;
- Mediation – in Queensland at the moment, mediation is probably the preferred method for resolving Family Law property disputes. A mediation is a process in which an independent Mediator (usually a specialised Family Law Mediator, such as a Barrister, Solicitor or retired Judge) mediates the dispute and assists the parties to resolve the matter. Mediation is a carefully planned and formal process. Mediation itself usually takes one day and parties often attend with their legal representatives at the Mediation.The advantage of Mediation is that it allows the separating couples to resolve their matter fairly (by following processes such as disclosure and valuation) and still argue their case strongly but be committed to settlement at the end of the Mediation. This usually ensures a fair settlement being reached with both parties making compromises.
Due to the fact that there are many well qualified and excellent Mediators available in the Queensland market this means that Mediations can be arranged relatively quickly and the whole process from start to finish usually takes 2 – 6 months depending upon the complexity of the matter.
The process does have costs associated with it, but the costs are substantially below what those costs would be if the matter proceeded to litigation in the Family Court or Federal Circuit Court.
By settling matters early through Mediation, both parties retain some respect and dignity and save substantial monies and are able to move on with their lives relatively quickly after a separation.
- Arbitration – Arbitration is a process whereby both parties need to agree to appoint an independent Arbitrator (usually a retired Judge, Barrister or qualified Solicitor) to decide their case and deliver a binding award. Whilst this option also has expenses associated with it, it once again has the advantage of the parties being able to resolve their matter relatively quickly and with a process that they decide upon.Arbitration can be a viable option for parties where Mediation has not been successful and they would like a decision made that is binding without having the stress, pressure and delays of going to Court.
Arbitration can also be an option for parties where they simply want a quick decision that is binding so that they can move on with their lives after a separation.
- Collaborative Lawyering – This is another alternative to litigation whereby each of the Lawyers retained by the parties have been collaboratively trained and the parties agreed to use the collaborative process to resolve their dispute. An agreement or Collaborative Contract is usually signed by the parties.The process involves a series of face-to-face meeting by the Lawyers, the parties and other collaborative experts (such as Counsellors or Accountants as may be necessary) to enable the parties to negotiate an agreement.
If the parties do not reach agreement and Court is the only alternative then both Lawyers involved must withdraw from the case.
- Assisted Mediations or Negotiations – This is a process whereby the separating parties jointly engage a Mediator to assist in their negotiations and mediate their dispute (often with the help of a trusted Commercial Lawyer, Accountant or Financial Advisor).The Mediator uses facilitative mediation techniques to help the parties come to an agreement and then the parties are referred to independent Lawyers to draft the agreement and put the agreement into place.
This process enables the parties to have a confidential, discrete and private forum to resolve their dispute, with a professional who is skilled in such dispute resolution prior to each party then going to Lawyers to put in place the agreement that they have reached.
In summary, there are many alternatives to Court litigation. The ultimate goal is for you to be able to move on fairly and quickly after your separation and this can’t be done if litigation in the Family Court commences.