If you are married or in a de facto relationship, there will be many experts and professionals that you and your spouse and partner will have sought advice from regarding your finances. These could have included your bank manager, an accountant, a tax advisor, a mortgage adviser, and an investments expert, to name but a few, but the day could come when your finances need the help of a family lawyer.
Now a divorce lawyer may not be the first professional that you think of when discussing finances, however, if the time comes when unfortunately your relationship breaks down and you end up filing for divorce, your family lawyer could be in a position to help your own personal financial position.
We are not talking about them giving investment or tax advice, although they may well recommend someone who can. Instead, we mean them using their expertise and knowledge of family law to ensure that when the specifics of your divorce are being considered by the Family Court, that you are awarded costs, including those of employing that very same family lawyer.
This is where we hit the first difficulty in having costs awarded to you. Specifically, the principle within Australian divorce law as laid out in the Family Law Act of 1975, where divorces are regarded as ‘no fault’. In other words, an irretrievable breakdown is usually the term used to grant a divorce, regardless of what other circumstances might have existed within the marriage or partnership.
Often this can make one party to the divorce feel aggrieved since it may have been their ex-partner or spouse who effectively caused the breakup by walking out on them or being a serial adulterer. Rightly or wrongly divorce law effectively ignores these behaviours and any other that might cause a marriage or de facto relationship to end.
As such when the divorce is finalised and given the no-fault tag, costs are not awarded to either individual. This is unlike cases where someone might sue another party for damages and when they win, they not only receive compensation but are also awarded the cost of bringing the case to court in the first place.
That does not happen in divorce law, however, it does not mean that costs are never awarded as part of a divorce order. If the court feels that one party to the divorce has acted in an unacceptable way, then it may award costs to the other party, giving them an additional and often welcome boost to their finances.
The first unacceptable behaviour that might see the Family Court award costs is when of the individuals divorcing refuses to provide documentation relating to their finances which have been lawfully requested, either by a family lawyer, or more seriously the Family Court.
Second, is when the other party simply refuses to answer any questions or correspondence relating to the divorce. This does not necessarily have to be questions about their finances. The court would view this behaviour as deliberately causing the other party to have to spend more in relation to the work their family lawyer is having to do in order to chase answers to valid questions.
Next, costs may be awarded to you if your ex-partner or spouse deliberately withholds documents or blatantly tells falsehoods concerning any documents which apply to your divorce. This would mainly include documents relating to finances, but it can also relate to other matters such as the couple’s children and their welfare.
Finally, we have the most serious situation of all which is when one of the parties breaches a court order that has been laid down by the Family Court in relation to a divorce. An example of this would be a mother refusing the father the ordered visitation to their children, or a father refusing to pay child support.
This would not only give your family lawyer grounds to request costs for any further actions that are necessary but could also see the person breaking the court order being arrested and charged.