Legal comment by Mark Illidge of Hinterland Lawyers

November 2005

Often when people are separating, and experiencing a raft of negative emotions, they focus purely on maximising their percentage split of the matrimonial assets.  This can lead to protracted disputes, and sometimes Family Court proceedings.  If the court is given the task of determining a matrimonial property settlement it will determine the net value of all property, assess the contributions of each party, examine the future needs of each party, consider other circumstances and then make an order that it considers to be just and equitable.  However if the parties can agree to a settlement without recourse to the court, and within a set timeframe, then the entire process is quicker, cheaper and less stressful than typical Family Court proceedings.      

You may have seen last week's episode of The New Inventors, in which the winner was a conflict resolution software package called "Family Winner".  This product is designed to help separating spouses rationally negotiate their disputes.  It does this by advising options for trade-offs of assets between the opposing parties, based on ratings and preferences that they have entered.  It therefore forces each person to focus on their interests, and recognise the necessity for compromise and trade-offs.  One of the inventors commented that it had the added benefit of "keeping lawyers out of the process".

I'm all for people reaching mutual agreement on splitting of their assets, spousal maintenance and future parenting for their children.  However I do recommend that all separating spouses seek independent legal advice, at least initially, so that they are aware of their legal entitlements.  They can then commence negotiations on the basis that what they are seeking is reasonable.  Also the terms of the resolution should be recorded in writing and either approved by the court via a Consent Order or documented in a Binding Financial Agreement.

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