Believe it or not, as family lawyers we pride ourselves on sorting a matter out without having to resort to court proceedings. Not having to head to court always means a cheaper, quicker and less stressful outcome for our clients. Invariably it also means that you the client end up with a result you are more happy with in the long term.
Sometimes court is inevitable — maybe because the other party is being unrealistic, or orders are needed to protect assets, or because the law is not clear on what should happen for your particular situation.
But where court is only an option it is worth asking yourself and your lawyer these questions.
1. Will court lead to a quicker result?
Unfortunately, the family law system is plagued with significant delays — 2 to 3 years between first court date and final hearing is not uncommon. While commencing court proceedings can be a good step to take to get things moving, it doesn’t necessarily mean a quicker resolution. Make sure you continue to focus on getting the matter resolved, not just the next court date. You and your lawyer need to have discussed and agreed on the strategy to get the matter to settlement.
2. Would we be better to mediate before court?
In any family court proceedings for a property settlement, one of the first things the court is going to insist on is mediation. Mediation has a high rate of success in resolving matters. If all relevant information is available you may be better trying to arrange mediation before court proceedings.
3. How much is court going to cost as compared to just continuing to negotiate?
Make sure that you understand what is the cost of going to court compared to continuing to negotiate — keep in mind it is also not just the financial cost but the emotional cost and your valuable time that needs to be factored in
4. What would a judge be likely to decide in my matter and is that the most likely outcome in court?
It is simply stunning how many people head off to court not having a clear understanding of what the judge is likely to decide in their matter. Experienced and skilled family lawyers will know this and make sure you understand it.
5. Is there a clear offer from me and a clear offer from the side, if not: why not?
It is amazing the amount of times we see other lawyers tell clients to take a matter to court without the client understanding what their position is or what is the position of the other side. In a small amount of cases this is appropriate — like where you have to urgently go to court to protect assets. However, in most circumstances you should
6. How far apart are we?
Again, before you decide to court, make sure you know what the scope of the dispute is. You should also understand from what your lawyer has told you what the difference is in proportion to your likely legal costs — the right result for you is one that has the right balance of these factors.
7. Will you be appearing for me in court at court hearings, if not should we discuss the matter with the barrister before we start court proceedings?
At OFRM, we try to appear on your behalf in court for most court dates, although briefing counsel can be useful in some interim matters and most final hearings. If a barrister is going to be involved, it can be a good idea for your lawyer and you to meet with them even before commencing proceedings as discussing your matter with another person to be included in your team can sometimes provide an insight that can help lead to earlier resolution
8. Have we got all the evidence we need for the court hearing?
I often describe the family law process as a journey of narrowing the number of issues in dispute. Often these issues in dispute are matters which can be solved through evidence – for example bank records to prove what money was received, a valuation to prove what something is worth. Sometimes you are better to close the gap on that evidence than go to court. It’s a good idea to make sure you understand the evidence gaps when thinking about whether to start court proceedings.
9. Is there any sense in me trying to talk directly to my ex to try and resolve it?
You’ve separated, you’ve got lawyers, and there’s been correspondence and negotiations back and forth. It may seem odd, but even with all that water under the bridge many matters can then resolve when people decide to sit down together and work it out. This can make sense as by that time you have a good understanding of the relevant factors and may have adjusted to separation to an extent that you and your ex can have a sensible discussion. There are many situations where this is not appropriate, but where it is, it can be a useful step
10. How long is court likely to take?
The answer can be like how long is a piece of string but don’t go in to court without your eyes wide open about how long the court process will take. Factors like what is in dispute, how long a hearing would take, what evidence needs to be obtained and even which court and which judge will alter the estimate of time.