I’m sure after reading the above title your first thought was something along the lines of: ‘Drama fuelled court battles that last many years and cost enormous amounts of money’.
Sure these are the types of breakups that people talk about; but I’m here to tell you that no one ‘wins’ in these breakups (the lawyers included).
Why don’t you win by battling?
It is the time, cost and emotional investment that separated couples will experience. The ultimate impact is not only to the couples themselves but the wider support networks and in particular, any children of the relationship. Sure there are always going to be situations when taking a matter to Court is inevitable, whether there are urgent safety issues or where people are simply too far apart in their expectations. However, it should almost never be the first step in a family law matter.
So what other options do separating couples have?
Three words: negotiate an agreement. No that doesn’t mean one spouse must ‘settle’ or give into any and all demands made by their ex. Instead, it is an option that allows people to work through any issues they each have and to try to reach an agreement that they can both live with. People will save themselves alot of time, sleepless nights and an absolute truckload in legal fees by using this option. Sound appealing? We think so too! Of course if the relationship ended on sour terms and/or one spouse is out for the other’s blood, then the likelihood of a quick and easy agreement can be significantly reduced. There are however many different techniques that can be employed depending on a matter to negotiate an agreement. Some common techniques include private discussions between couples, negotiation through solicitors, counselling and mediation.
How do you start the negotiation?
As a first step, separated couples should seek advice from a lawyer who specialises in family law. It may also be appropriate to seek advice from a financial advisor. In my experience, separated couples who negotiate without knowing their entitlement or options almost always result in disaster!!
So you’ve negotiated an agreement - what next?
People should formalise the agreement in a document called ‘Consent Orders’. Consent Orders are technical documents and should be prepared under the guidance of family lawyers. Consent Orders will ensure that an agreement is properly documented, binding and enforceable. There can also be tax and other duty benefits with their use.
What’s the risk if you don’t get Consent Orders?
The major risk with leaving an agreement as an informal one is that circumstance may change shortly after separation or many years down the track. That change may result in a spouse refusing to stick to the ‘handshake agreement’, and instead electing to take their ex-spouse to Court to battle on. Those circumstances can include when:
- spouses have a falling out with each other for various reasons (generally a new partner); or
- a former spouses financial circumstances dramatically improve or suffer.
So what should you take away from this?
Everyone wins with Consent Orders (even us lawyers!). Give yourself the peace of mind and apply for Consent Orders. It really is a no brainer.