Dealing with the breakdown of a relationship is difficult. If you have intermingled your finances, you must also consider how to ‘sever’ your financial relationship. This can be especially complicated if your former partner is not on the same page as you with respect to how you progress your separation. For example, your former partner may not ‘accept’ your separation and put their ‘head in the sand’ by choosing to ignore communications from you. Your former partner may also be unable to progress matters as a result of mental incapacity, such as due to cognitive decline or poor mental health, or physical disability.
If you have done some research on what happens after separation, you will be aware that the Court usually adopts a ‘4-step approach’, being to determine what the property ‘pool’ is (through understanding the assets, liabilities and superannuation), to assess contributions (including initial, during the relationship and post-separation), future needs and whether the outcome is ‘just and equitable’. For more information, you can review our blog post about the 4-step process.
Notwithstanding which step you are at in the property settlement process, if you experience difficulties in engaging with your former partner, there are options available to you to ensure that your matter progresses.
You can engage a lawyer to communicate with your former partner. This can help to take the heat out of communications and to focus your communications on progressing your matter. Your lawyer can also advise you about whether you need to commence Court proceedings.
If your former partner refuses to respond or is unable to progress matters, you may need to commence Court proceedings. Once you are involved in Court proceedings, you are still able to continue negotiations outside of the Court process.
Once in Court, if your former partner continues to refuse to engage and there is no evidence about any incapacity to make decisions, your matter might progress to an undefended hearing. This would mean that the Court ultimately makes a decision about how any property should be divided, based on the evidence before it, in the absence of your former partner.
If there is evidence that your former partner may be unable to progress matters due to some incapacity, the Court may appoint a litigation guardian as a last resort. A litigation guardian acts on behalf of a party and ‘stands in the place’ of a party, including making decisions about the conduct of the proceedings.
A litigation guardian is usually a third party with no adverse interests to the person in need of a litigation guardian, such as a close friend or in some instances, a family member. The public trustee can also be appointed as a last resort.
If you are concerned about the progress of your matter, you should contact a family lawyer to obtain advice. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Anika Buckley