Family Law – Rights v Interests: the family law experience

When you first see your family lawyer,there’s a jumble of information you need to provide and even more information for you to receive. You’re understandably emotional and perhaps confused about what lies ahead for you.

Your family lawyer will advise you on the fundamental principles of family law for the redistribution of your matrimonial property and the care of any children of the relationship who are under 18. Your family lawyer will also advise you of the several methods for achieving resolution to your family law matter.

A lot of our clients want to know how long it will take to achieve resolution. We say it depends on the nature of your matter. We also advise that it’s difficult to foretell whether you will be able to quickly resolve any disputes with your former partner. Unfortunately,some issues in family law disputes become intractable and extend the amount of time required to achieve resolution.

So, why do some family law issues become intractable?

Family law issues can become intractable when the parties focus on the negative: the ‘what was’, ‘why’ and ‘how’ of the relationship. While we understand you need to dissect your relationship, it is not fruitful for achieving resolution. This is evidenced by the next step in this mental process being retribution: saying ‘no’ to every request just because you can (whether it’s reasonable or otherwise), refusing to participate in family dispute resolution without a reason and parents ignoring the fact of the relationship they continue to share until at least their child turns 18 years of age.

In our experience, intractable issues underpin the matters which end up in court and stay there for quite some time. Court based resolution consumes emotional, physical, time and financial resources.Litigation also becomes a drain on your continuing relationships with others because mounting a strong case often means asking significant people in your life to be your witness at court.

What can be the outcome of court based resolutions involving such issues?

It has been our experience that court based resolutions do not necessarily achieve the best outcome for parties to a family law dispute.This is because the decision making power has been moved away from each of the parties to the court. The decision is imposed rather than agreed: one or both of you will likely be aggrieved at the resolution, and at each other. In these situations,the likelihood is that the courts’ orders will be breached which can produce serious consequences.

Put simply, court matters can make life more difficult: now and in the future.
A different focus

There’s another way to achieve resolution to your family law matter. The process requires a different focus: ‘interests’ not ‘rights’.

Where children are involved, the focus of family law is the child’s right to an ongoing and genuine relationship with their parents and extended family.We recommend that parents view the dissolution of their relationship through the child’s eyes – what will now be in your child’s best interests? This is a coalescence of rights and interests.

By comparison …

You’ve sold the matrimonial home and the funds are sitting in a trust account. One of you faces bankruptcy and the other is working part-time and is a residential parent. The person facing bankruptcy runs a company- if they go bankrupt, the company will go under.

The company has paid for everything during the relationship and will continue to provide for the needs of the family unit for many years to come.There are complicating factors and it’s difficult to see how the possible bankrupt will overcome if the usual rights’ based path is taken. Let’s face it,the residential parent is legally entitled to a higher distribution from the matrimonial estate.

The question for these people is: is it in all of the parties’ interests for the residential parent to obtain the higher distribution of the matrimonial estate if it forces the other partner into bankruptcy? No, it is not.

Our family lawyers practice the interests-based approach which,in the above example, allows for the near bankrupt to continue deriving a healthy income from the successful company which can be readily maintained because a portion of the matrimonial estate is provided to stave off bankruptcy.

The outcome: the money earned by the company in the future pays for an exceptional education for young children and allows those children to reach their full emotional, physical, intellectual and spiritual potential.

Come talk to us to negotiate through your family dispute using the principled path.

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