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Common Misunderstandings

You Don’t Need to be Aggressive or to Find the Most Aggressive Lawyer in Town

There are really only two ways to resolve family law matters reliably – one way is relatively easy, relatively quick and relatively cheap but requires some cooperation between parties; the other way is relatively slow, difficult and expensive.

It follows from the above that, to resolve family law matters quickly, easily and cheaply with less stress, you need the cooperation of the other party. They also need your cooperation.

It is common for clients to ask whether they should change the locks at home or withdraw lots of money from the joint account before the other party does so. This kind of thing can cause concerns or disputes about short-term or peripheral issues. Disputes about short-term or peripheral issues can (and often do) cause added or unnecessary delay or cost. More importantly, they can lead to an atmosphere of hostility, suspicion or one-upmanship which can make sorting out the whole family law matter more difficult and more expensive.

It can also be important to recognise what is likely to be available from a system that cannot easily be changed. Change in the family law system (of any significance) can only really occur via legislation or via a decision of the full-court (and this is usually an extremely expensive exercise) or the High Court (which is even more expensive). You need to be wary of anyone who tells you that you can get a better deal by spending more money on legal fees, fighting harder or being aggressive or unreasonable.

While from time to time you might feel like you would like to enter the courtroom with senior and junior counsel (who look like Robert Redford and Paul Newman) exerting your authority over the other party or teaching them a lesson, this is really only the stuff of Hollywood. In the real world, both parties need the cooperation of the other to resolve a family law matter efficiently and cost effectively.

As a general guideline, both parties should concentrate upon resolving a family law matter as a whole (and not just bits of it) efficiently and should aim not to upset each other (unless it is absolutely necessary) and not to upset cooperation.


See You Don’t Need to be Aggressive or to Find the Most Aggressive Lawyer in Town

Do I Need to Rearrange my Finances to Protect Myself Before Divorce?

You might get this kind of advice from well-meaning friends or family.

Sometimes, participants (or potential participants) in a family law matter will move assets about in an attempt to hide them from the other party or the court. This assumes that the other party, the other party’s solicitor and the court are all naïve and powerless.

In most cases, especially after a long marriage, both parties have lots of clues about what assets the other party holds. These clues can, if necessary, be combined with the court’s powerful information-gathering facilities (very important disclosure obligations, subpoenas, specific questions, discovery and others) to find evidence of dodgy transactions or asset movements.

The particular asset or assets do not need to be found. Unexplained withdrawals or expenditure or the like can be enough (ask us about the cases).

Even small indications of attempts to defeat the court’s jurisdiction by hiding assets can result in very unpleasant outcomes for the offending party (ask us about some of the cases). This is why we say that these kinds of asset movements can backfire. They will generally reflect badly upon the offending party in the courtroom (or in preliminary steps) and this might mean a greater incentive for that party to resolve the matter without significant court involvement.

There are a number of examples of attempts to rearrange finances to change family law outcomes backfiring in the case law. One involved evidence that Mr B had not disclosed evidence of a relatively minor transaction. This led to the trial judge drawing conclusions including "I find this a difficult case to decide due to a number of factors including... the lack of evidence as to what precisely the various loans were used for, the failure on the part of the applicant to disclose his financial position to the court and his attempts to conceal this matter from the court which has left the court in the position of not knowing what the applicant's financial position is, except that he deliberately underestimated it". On appeal, the chief judge of the full-court said "I would have been disposed to find that the appellant was entitled to nothing".

What if My Spouse Hides Assets?

This usually backfires. See Do I Need to Rearrange my Finances to Protect Myself Before Divorce?

Reliable Agreements

Property arrangements can only be reliable under family law if both parties have received independent legal advice (from separate solicitors), the parties have provided proper information about their financial circumstances to each other and the resulting agreement is registered with the Family Court (or another court of suitable jurisdiction). There is no need to attend court to register agreements; this process can be completed by lodging forms. Agreements which have not been registered with the court can break-down, become unreliable or unenforceable or cause problems many years into the future (see Avoiding Delays and Unnecessary Complications).

Divorce does not resolve Property or Parenting Issues

Divorce refers only to the issue of a decree absolute. This decree ends a marriage. It does not resolve or change property issues significantly and it does not resolve parenting issues. Divorce is the only part of a family law matter that may require twelve months separation. Generally, property and parenting issues can and should be resolved as soon as practicable.

You Do Not Need to Wait Twelve Months to Resolve Property and Parenting Issues

Divorce is the only part of a family law matter that may require twelve months separation. Generally, property and parenting issues can and should be resolved as soon as practicable after separation. (Separation can include separation under one roof.)

Separation Need not be Physical

Generally, separation under family law is taken to have occurred when one party has clearly communicated the end of the marriage to the other party. This can occur while both parties continue to reside in the same home. It can also occur against the wishes of one party.

The Difference Between a Good Deal and an Impossible Deal

See Gaining a Good Understanding of the System.