DIVORCE DELAYS NOT DOWN TO LAWYERS
IF the Oscar-nominated Netflix film Marriage Story is to be believed, divorce lawyers are predators bent on turning even the most amicable of break-ups into a protracted blood sport.
When Nicole decides to split from her husband, she finds herself in the office of renowned Los Angeles attorney Nora Fanshaw.
It’s clear that Nicole is a reluctant client. She doesn’t want things to get ugly.
Nora encourages her to disclose intimate details of her relationship, which she uses as ammunition during settlement negotiations and later in the courtroom. A social worker is appointed to monitor Charlie’s parenting skills. Assets and savings are bitterly contested as emotions are pushed to their limits. It’s a mess.
I can’t fault the performances in the film, but the conduct of these fictional divorce lawyers bears little resemblance to anything I’ve witnessed in my 35 years of legal practice in Australia.
In my experience, roughly half of all divorces involving property disputes settle at the early mediation stage. The remainder are usually resolved before a final hearing begins.
In cases plagued by delays, lawyers are easy scapegoats but are rarely to blame.
As former Queensland Law Society president Bill Potts said recently, solicitors do what their clients instruct them to do.
“Quite often, in such emotionally fraught cases, these kinds of delays are more often laid at the feet of difficult clients,” he said.
Still, this narrative of the scheming, money-hungry family law solicitor persists – and some politicians have fallen for it.
This year, the Federal Parliament will debate legislation that seeks to prevent lawyers from engaging in so-called delaying tactics, apparently aimed at sending the other side broke.
They would also be required to encourage their clients to accept a reasonable offer of settlement.
If they failed to do any of the above, Family Court judges would be given new powers to order solicitors to “bear costs personally”.
The reality is lawmakers in Canberra are fixated on the wrong target.
The problem is the disclosure process in which solicitors on both sides are required to share information and documents relevant to the case, and the need for each side to agree on asset values, or to have valuers prepare valuations. Sometimes these aren’t ready by the time mediation is under way.
There are a couple of reasons for this.
First, one of the clients may be motivated to drag the chain on a settlement and won’t move along with disclosure or valuations.
Secondly, a solicitor may have been too busy to do the necessary heavy-lifting. So how do we fix this? It should be a requirement, across the board, for the Family Court to set up a telephone conference a few weeks before the mediation date. This conference would include clients, solicitors, valuers and a judge or court registrar. Both sides would need to provide an asset list, including agreed and contested values for each item.
A judge or registrar, listening in, would be able to make further orders, if needed, to hurry things along.
Having a checkpoint with a judge or registrar prior to mediation should significantly improve the number of cases that are “mediation ready” and better placed to settle.
Contrary to Marriage Story, my profession is not swarming with Nora Fanshaw types. But when it comes to the process of getting a speedy, fair, final property settlement, there is room for improvement.