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Family Law Do’s and Don’ts

Written by Pearsons Lawyers
9 April 2021

Here are some easy to follow tips to follow when separating:

Do Nots:

  1. Do not let your emotions get the better of you. Emotions run high at the time of separation and often people do and say things that they later regret.  Pretty much everything that is said, done, texted or emailed can be brought before the Court as evidence. Step back, take a deep breath and consider very carefully any action that you propose to take. If possible, obtain legal advice immediately.
  2. Do not discuss the separation, your feelings about your former partner or other adult issues with the children.  This simply confuses them and may cause them long term emotional and psychological damage.
  3. If you go to a Family Consultant/Report Writer regarding a children’s dispute do not do all of the talking.  It is very important to listen to what is being said, engage with the topic at hand and be future focused on the benefit of the children rather than being caught up in the emotions of the relationship and the separation.
  4. Do not settle financial matters without full and frank financial disclosure of all assets.  There cannot be a fair settlement without knowing everything that is available for division and, if there is any dispute, having it valued so that there is clarity and certainty.   All possibilities are to be considered including superannuation entitlements and capital gains tax on investments.  Then, you can make a decision as to how to move forward with a financial settlement.
  5. Do not try to hide income or property.  Inevitably income or property that is hidden is revealed and then there are huge issues with credibility and, at a later date, your case may be re-opened.
  6. Do not agree to divide property without having it documented and formalised by way of either Consent Orders or a Binding Financial Agreement (“BFA”).  Simply reaching an agreement and then dividing the property does not end the financial relationship and can leave both parties exposed to a claim financially into the future.
  7. Do not move forward financially too quickly by buying property or investing in a business before you have divided and finalised financial matters with your partner.  This simply makes things more complicated and more expensive to unravel and legally settle.

Do:

  1. Do obtain a second opinion from an experienced and qualified Family Lawyer if you have any doubts whatsoever about the advice that you are getting.
  2. Do engage a Family Law Specialist who is experienced and to whom you can relate.  If you cannot engage and communicate with your lawyer then it is time to change.
  3. Do keep records of gifts, loans or other financial help from family or friends.  This would include statements showing the money coming out of their account and a statement evidencing the payment into your account at the same time.  Also, documents to demonstrate what you did with the money at that time.  Keep these documents and records in a safe place.
  4. Do take prompt action upon separation – timely advice is important.  After divorce, parties have 12 months to finalise financial matters.  After a separation, former defacto partners have 24 months from the date of separation to finalise financial matters.  Delays after these periods will incur extra costs and the inevitable risk that the Court may refuse permission to resolve matters outside those limits.
  5. Do budget in your mind an amount of time and money that you are prepared to spend on negotiating to resolve matters.  If the period of time and/or the amount of money is exhausted then you should consider proceeding in Court and having the matter sorted out there.
  6. Do negotiate promptly after separation and use your best efforts to reach an agreement and document the agreement quickly and cheaply.
  7. Do allow your lawyer to negotiate on your behalf.  It is dangerous for you to negotiate as you may set expectations too high and make promises that cannot be delivered.
  8. Do tell your lawyer the answer to the questions they ask.  If they are asking there is a reason for that.  Do not withhold any information as it may be important.
  9. Do ask whatever questions you have.  There is no such thing as a “dumb question” because if you do not know the answer then it is a good question.
  10. Do listen to the advice your lawyer gives you.  It may not be what you want to hear but it will be what you need to hear.

To arrange your free initial consultation with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.

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