Just because I can say no, should I?14 March 2022 Topics: Family law
Continually saying ‘no’ and resisting proposed agreements in your divorce proceedings can be harmful to your case. Family law partner Justine Woods explains.
Hello, hello, everyone, I’m Justine Woods I’m the family law partner at Cooper Grace Ward.
Now this is the promised sequel to the presentation, ‘Just because I can should I?’ This is the reverse, which is ‘I can say no, but should I?’ And so what I often observe when people come to see me is that because of the breakdown of the relationship, the mistrust that is naturally engendered by that process. All of the feelings, sometimes the actual transactions that have taken place financially as the parties have led up to separation or since there’s generally a natural impulse to say, ‘No. It doesn’t matter what’s presented to me, I’m going to say no’. Shall we use this valuer? No. Shall we exchange the documents by this date? No. And it can escalate until parties are asked to say yes to things or asked to consider proposals that are almost inevitably going to be adopted by the court if the refusal is maintained.
So, a very common example of this is that the party, who doesn’t have quite the same income as the other, will ask for what in Queensland what we would call a ‘Hogan order’ or a ‘Hogan style order’, which is about a lump sum of money coming to one party who can’t meet their legal and mediation and valuation and accountancy and forensic fees from their own income to come from the pool of assets. Now that is almost always then counted as part of their final property settlement entitlements. Oftentimes, the person asked for that money says, ‘My God, why do I have to provide them with a fighting fund? You know, I want them to agree. I want them to come along with me. I want to resolve this.’ And really, unless there is no source of funds from which that can be paid or there are some other reasons why, in reality, they could meet their own fees, that’s kind of an order.
Now the quantum, the amount that’s going to be awarded will vary according to case, case to case. But as a general principle, if there’s money lying around, the court is going to put both parties in a position where they can fund the investigations that are necessary about the value of assets, about parenting, about really part of the family law process. And so resisting it is a terrible waste of time and money, as a rule and I just say that without any veneer, lots of people will want to refuse that. They will want to refuse even though one person’s been at home, for example, and not worked for ten years looked after the children, they say ‘No spousal maintenance’. Well, then once you examine the financial realities of the family, if the advice is more more likely than not you, you’re going to wear a spousal maintenance order, then make some offers, accept the reality. Now that, of course, is not every case. We’ve fought plenty of them. But not as an instant reaction after careful consideration, is this something that you just have to dismiss out of hand and there are plenty of outlandish suggestions put to clients all the time, so you say ‘No way is that happening’. But there are others that will seem very unpalatable at the beginning, but that have to be considered.
So, if you’d like to discuss the many unpalatable things that you’ll be asked to decide as part of your family law settlement, please contact Cooper Grace Ward if you would like.