What are my options after separation?
In Western Australia, several property settlement options are available to couples who have separated after a marriage or de facto relationship. They fall into two basic categories: by consent and contested. In some cases, couples could use two or more of the following procedures:
AMICABLE DISCUSSION LEADING TO CONSENT ORDERS
Sometimes, parties are able to settle between themselves without the involvement of lawyers. This method is often referred to as “amicable discussions” because they often take place between the parties in an amicable fashion, privately and easily. If all issues are uncontested and can be decided and resolved by the between the parties, this is an extremely cost-effective way to obtain a property settlement because the role of the lawyer is limited to documenting the agreement. In these circumstances, provided that the agreement reached between the parties is just and equitable, a lawyer is often retained to draft the agreement in the form of Consent Orders, which are then filed at the Family Court. Once approved by the Court, the agreement is formalised, and final Orders reflecting the agreement are issued by the Court. If the parties do not want to involve the Family Court but want to ensure their agreement will be made final and absolute, they can retain lawyers to document their agreement by way of a Binding Financial Agreement.
Collaborative law is a fast-emerging concept becoming increasingly popular in Western Australia. If a couple chooses the collaborative route, they and their lawyers sign an agreement promising not to litigate or threaten to litigate the issues during the process and work together toward resolving issues without adversarial court hearings. Often times, a collaborative separation is a healthier alternative to battling out the issues in Court. If the collaborative process is not adhered to and/or the process does not resolve the dispute, the agreement is terminated; the lawyers for both cannot represent the separating couple in any subsequent, related litigation and the clients are referred to new lawyers. Clients and lawyers have a duty to make a full and frank disclosure of all matters relevant to the dispute. Lawyers, while representing their individual clients, have a duty to assist the family as a whole to achieve the best possible outcome. Jointly retained neutral experts can be called into the process to reduce conflict opportunities and support parties (for example financial advisors and psychologists).
Mediation is another alternative for settling without litigation. In a Mediation, a trained individual (the Mediator) will chair a meeting between the parties (and their lawyers if the parties are legally represented). The Mediator acts as a neutral third party, and will not favor either side, but will work with the parties to facilitate a meaningful discussion in an effort to resolve the issues. Because the Mediator is a neutral party, he or she will not offer legal advice directly to either party. However, they may comment on the likely range of settlement in the context of cases decided by the Court. In Mediation, the goal is to reach a settlement where neither side wins or loses, but instead compromises are made to reach a result both parties can accept. Any settlement reached is the alternative to litigation, which is an expensive, time consuming and stressful option for both parties. The parties’ agreement is then drafted in the form of Consent Orders, which are then filed at the Family Court. Once approved by the Court, the agreement is formalised, and final Orders reflecting the agreement are issued by the Court. Subject to several exceptions, mediation with an accredited family dispute resolution practitioner is a required process before parties can commence litigation in the Family Court regarding children’s matters. Mediation before a Court Registrar or an accredited mediator is also mandatory after property litigation has commenced.
Where each party has a lawyer they may choose to have them negotiate on their behalf. Lawyers will give clients advice on their legal rights and obligations and clients may then instruct their lawyers to negotiate within certain guidelines. With this method, there will likely be an exchange of correspondence between the lawyers with the aim of settling the matter without recourse to litigation. One option with lawyer-based negotiations is for the parties and their lawyers to attend an informal conference together. This may be held at one of the lawyer’s offices. This gives the parties an opportunity to talk about what they want and to try to reach a settlement away from Court. If agreement can be reached following lawyer-based negotiations, that agreement can be written up into a formal document which is lodged with the Family Court. This document is called an Application for Consent Orders. The Court can then make Orders in the terms of the agreement. These Orders are binding and enforceable and give the parties certainty into the future.
If the parties cannot reach an agreement and the matter becomes contested, they will need to file an Application for the Orders they seek in the Family Court. Court proceedings can be costly, stressful, time consuming and may not lead to the outcome either party wants. Although going to Court should be a last resort, it can sometimes be the best or only option for the parties. Such circumstances include where there is an asset both parties wish to keep (for example a business or a home), where the parties cannot agree about the quantum or value of assets, or in children’s matters where there has been allegations of violence, or where parties’ positions are diametrically opposed.
If you are involved in litigation in the Family Court, it is important to note that other options such as lawyer-based negotiation and mediation continue in the background, and usually result in a resolution without the need for a final hearing. If agreement is reached at any time during the proceedings, it is possible to ask the court to make consent orders by filing a Minute of Consent Orders. If a settlement is not achieved, then the Court will make a decision for the parties after a defended hearing before a Judge or Magistrate.
For more information, or assistance in any stage above, please contact us.