What to expect when you engage a family lawyer
Separation can be stressful, daunting and personally devastating, and many people don’t know where to begin. For many, it is difficult to know what questions to ask, let alone what the first step to take is.
One of the best first steps is speaking with a family lawyer. They can explain your legal options, answer your questions and guide you through the process, whether you're dividing property, making parenting arrangements, applying for a divorce or dealing with family violence.
Getting started
When you first engage a family lawyer, they'll usually ask you to sign a costs agreement. This sets out how you'll work together, what legal services they'll provide and how you'll be charged.
Many family lawyers also require an upfront payment, known as a retainer. This money is held in a trust account and your legal fees are deducted from it as work is completed. Your lawyer will let you know if the retainer needs to be topped up during your matter.
Property settlements
Whether you were married or in a de facto relationship, one of the first steps in a property settlement is working out what assets and liabilities need to be considered.
This usually involves both parties exchanging financial information, such as:
- bank statements
- tax returns
- loan documents
- information about businesses or companies
- superannuation details.
The law requires both parties to be open and honest about their financial circumstances. In some situations, information about a new partner's finances may also be relevant.
Valuing your assets
Some assets need to be professionally valued before negotiations can begin. This often includes real estate, businesses or companies, and sometimes superannuation.
In most cases, both parties will jointly appoint an independent, qualified valuer. Your lawyers will agree to instruct the valuer, by way of a Joint Letter of Instruction, so the valuation process is fair and transparent.
Negotiating a settlement
Once all the financial information has been exchanged and the assets have been valued, negotiations can begin.
If the issues are relatively straightforward, your lawyers may exchange settlement offers in writing until an agreement is reached.
If an agreement can't be reached, the next step is often mediation.
Mediation
Mediation is a meeting led by an independent mediator who helps both parties work towards a mutually acceptable settlement. Your lawyers will usually attend with you.
If you don't feel comfortable being in the same room as your former partner, mediation can often be conducted using "shuttle mediation". This means you and your former partner remain in separate rooms while the mediator moves between you to discuss offers and possible solutions.
Many family law matters are resolved at mediation, helping both parties avoid the time, cost and stress of going to court.
Making your agreement legally binding
If you reach an agreement on the settlement of your property matter at mediation, your lawyers will prepare the legal documents needed to formalise it.
This generally looks like your lawyers drafting a Minute of Consent Orders, which will be filed with the Court alongside an Application for Consent Orders (setting our your and your former spouse’s financial circumstances and how they will be impacted by the settlement agreement).
If the Court approves the Application for Consent Orders, the Minute of Consent Orders will be affixed with the Court seal.
This approval from the Court makes the orders legally binding for both you and your former spouse.
If your matter goes to court
If an agreement can't be reached through negotiation or mediation, proceedings in the Federal Circuit and Family Court of Australia may be necessary.
Going to court is generally considered a last resort because it can be expensive, time-consuming and emotionally challenging. It also means a judge—not you and your former partner—will make the final decision about your matter.
If court becomes necessary, your family lawyer will prepare your case, explain each stage of the process and represent you throughout the proceedings.
You're not expected to know the process
Most people have never been through a family law matter before, so it's completely normal to have questions and feel uncertain about what lies ahead.
A family lawyer's role is to help you understand your rights and responsibilities under the Family Law Act 1975 (Cth), explain your options in plain English, and guide you towards the best possible outcome for your circumstances.
Need help now? Book an in-person, phone or online consultation to stop the uncomfortable feelings of a life on hold and start feeling the confidence and clarity that comes with moving forward.
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