Lately the Family Court has been under intense criticism. People have spoken about the faults in the system that make the process lengthy and expensive for some families. However, almost all couples who separate can resolve matters without needing to involve the Family Court.
Parties can proactively take steps to avoid going down the rabbit hole of divorce litigation.
Seeking advice from a counsellor, psychologist, or lawyer before or shortly after separation will allow you to narrow down the issues.
A counsellor or psychologist can help you work through the emotions of a separation. If you share children with your partner, it can be especially difficult to accept that you may not have fulltime care of them any more. A counsellor or psychologist can help you determine what your goals are for parenting.
A lawyer can help explain the legal process and your position. If you do not have significant assets, it is more likely you can resolve the division of your relationship property without the need to involve lawyers.
To divide your relationship property, you will need to gather the relevant documentation. These documents will help you determine the total property pool. Important documents may include bank statements, superannuation schemes (such as KiwiSaver), valuations, trust deeds (if relevant), loan documents and other assets such as share portfolios or cryptocurrency. Provide these documents to your lawyer as early as possible so they can give the most accurate advice and get the process moving along.
A quick resolution will require you to openly communicate with your partner. If you find it difficult to speak directly with your partner in a constructive way, you could involve a trusted third party to encourage discussion between you. This could be a mutual friend or someone from a community that you are involved with, such as a church.
Make sure you are not doing anything to make the situation worse for either of you. Avoid any negative communication, including on social media.
Save discussions about your separation for times that are not in front of the children. Separation is a confusing time for children and watching their parents be nasty to each other does not help. Changeovers are a common time for arguments to occur. Also consider when and how you will tell the children about the separation.
At any time, you can sit down together and reach an agreement. This is the most common method for separating couples. It is simple and quick and allows everyone to move on. Even if you cannot agree on everything, you can agree on major matters such as whether you will sell the family home.
Negotiation through lawyers
If you cannot constructively negotiate between yourselves, you can involve lawyers to do it on your behalf. Lawyers can negotiate through letters, phone calls or roundtable meetings. They can propose an offer to settle, known as a Calderbank offer.
Some family lawyers have undertaking training to use a collaborative approach. Your collaborative lawyers will negotiate on your behalf though a series of meetings, usually with you both present. Proactively meeting and discussing the issues is often better than sending endless letters back and forth.
You can also agree to attend mediation. The mediator could be a trusted third party who you know or a professional mediator. Mediation is guided by the law but allows you to come to an agreement that works best for you. For parenting matters, subsidised mediation may be available through Family Dispute Resolution providers such as Fairway or the FDR Centre.
Avoiding post-separation adjustments
When separations are settled early, they avoid disputes about post-separation adjustments. For example, one party may have continued to pay the mortgage alone or is now paying rent and want the division of property adjusted to reflect that. The dispute may have dragged on for so long that the original valuation on the home is no longer an accurate reflection of its value. This adds additional time and costs for the parties.
During the relationship
If you have not separated from your partner but are concerned what may happen if you do, there are two important steps you can take.
Talk about finances
First, ensure you have ongoing and open discussions about finances during the relationship. Too often, one party will seek legal advice at the end of the relationship but have no idea what their partner earns, how big the mortgage is on their home or whether their name is even on the title. It is okay for one party to manage the finances but make sure that you are at least involved in the discussion and that you have visibility over big decisions.
Contracting out agreements
Second, you can consider entering into a contracting out agreement (often referred to as a pre-nup). Couples often enter into a contracting out agreement if one party brought more assets into the relationship, such as a home. You can enter into a contracting out agreement at any time. In the agreement, you can specify how your property would be divided if you separate. This provides certainty for you and reduces the chance that your matter will end up in court.
The Family Court process can be time consuming, expensive and emotionally draining for separating couples. However, almost all couples can resolve their matters without the need to involve the Court. To avoid litigation, seek advice from professionals early, communicate as openly as possible and consider other methods of dispute resolution.
• Jeremy Sutton is a senior family lawyer, specialising in separation cases where there are significant assets, including family trusts and complex business structures.