Is now the time to sort out property after separation?

The current COVID-19 pandemic has brought with it great uncertainty for anyone faced with sorting out a property settlement following separation. Courts are prioritising parenting cases over financial matters and many people’s employment and economic lives are in turmoil.

One of the many issues caused by the  pandemic in Family Law property disputes is the emergence of a difficult choice as to whether to press ahead now with a property settlement claim or to wait until things ‘return to normal’ – whenever that might be.

The long term economic impact of coronavirus is of course a great unknown but people still need to get on with their lives. Having the headache of an unresolved financial dispute with your ex-partner is something nobody wants or needs in their life.

With the prospect of court based resolution taking a much longer time than the overworked courts even before Coronavirus it is important to get sound legal advice on your situation so that you can establish a strategy right for you.

Things to consider

Uncertainty as to the value of property. Determining and or agreeing values for all types of property but especially real estate, businesses and self managed superannuation are likely to have some challenges.

Business continuity. Thousands of businesses have been affected by the response to the virus. Some businesses have closed, others partially shut-down and other continue to operate in new ways. If either or both parties to a dispute have a business interest there may be significant doubt as to its ongoing status which of course impacts

Changes to employment. With many people either losing their employment altogether, being stood down or seeing a reduction in their hours and income, in some cases this may be an uncertain time to ask a court to decide short term financial disputes. However there may still be merit in trying to progress long term issues.

Diminished superannuation balances. Superannuation investments have been rocked by the financial impacts of COVID-19 on the stock markets. It may be necessary to take a long term view to get the right outcome in your financial case.

Court delays. The Judges, Registrars and staff of all of the Family courts are doing their best in what are very trying circumstances. However it is likely that many cases won’t proceed as quickly as before and there may well be a backlog of deferred matters in the future. Factoring in the decision to start now or wait until later will have to consider the impact of court delay.

Changes to court processes. In responding to the pandemic and the need for minimising travel and maximising social distancing the Family courts are using remote access technology, such as Microsoft Teams, to hear cases. Not all cases and not all participants will be suited to these methods.

Limitation periods. Something not to be overlooked in any property matter is whether or not a limitation period applies. For example, a party to a marriage has only 12 months from the date that the divorce takes effect in order to file court proceedings seeking a property settlement. It is vital to get legal advice to see whether any limitation period affects your case.

Expense. With the financial uncertainty surrounding coronavirus spending money on legal proceedings may be the last thing on your mind. However losing the opportunity to bring proceedings may prove to be much more costly in the long run.

Availability of information.  With the lockdown and restrictions on movement and activity especially in relation to businesses and employment it may take a little longer to collate all of the information needed at the outset or to obtain co-operation from the other party. But with court processes such as subpoenas requiring the production of documents to the court, you may find yourself better informed by commencing proceedings than by deferring.

Health issues.  It appears to be a feature of the pandemic that certain members of society are at greater risk than others. Age, health and pre-existing medical conditions may be relevant in considering how and when to proceed with your financial case.

Attitude of other parties.  In many instances the other party will take a deliberately obstructive approach to concluding a financial settlement. If that is the case sometimes the only way to proceed is by commencing court action.

As you can see, deciding what is the right approach to one case may be very different to another matter despite the apparent similarities between cases.

Alternatives to court proceedings

At Bell Legal Group we always look to resolve cases without the need for litigation if possible. Now more than ever it seems sensible to consider alternatives to heading to court to resolve a family law property settlement dispute.

Apart from simple negotiation, settlements can be achieved by using a mediator or even a Family Law arbitrator. It is important for people to try to settle their cases wherever possible and so avoid a lengthy court case made even longer and more uncertain by the impacts of COVID-19.

Court is still a viable option

Going to court may be the right thing to do in your case. It can force a stalled issue and ensure that the case will eventually be resolved.

The courts have shown their adaptability to cope with the changed environment of COVID-19 and cases are still proceeding and being resolved.

Get advice today about the right way to proceed with your family law property settlement. To help you, we offer an initial consultation and can discuss your case by phone, Skype, Microsoft Teams, Zoom or in person at our office with social distancing protocols in place.

Call us today on 07 5597 3366 or simply fill out the ‘Contact Us’ form below.

 

For more information on this topic please contact Margaret Miller, Partner and Family Lawyer. This article has been prepared by Bell Legal Group for general information purposes only. It is not legal advice and should not be relied upon as such.