Couples planning to marry or to live together are usually caught up in the romance of the moment and the wondrous prospect of a life together. This is what makes the world go round and should not be discouraged or diminished.
Statistics tell us, however, that approximately 50% of first marriages and significantly higher percentages of second and subsequent marriages end in divorce. The figures for marriage like or de-facto relationships are less reliable, but there is every reason to believe that the incidence of breakdown is at least as high as for marriages.
There are very good reasons for certain couples about to move to a new stage of togetherness to consider making a prenuptial or cohabitation agreement.
1. With the average age to marry increasing and with many partners having previously been married or in marriage like relationships, it is common for one or both to bring significant property assets into the relationship. A properly prepared agreement can protect these assets.
2. Many partners need to consider children from previous relationships. An agreement may protect the financial interests of these children well into the future.
3. It makes sense to negotiate financial matters at a time when trust is high and arguments rational and logical rather than tinged with the illogicality, intransigence, grief, loss, guilt and bitterness that often accompany relationship breakdown.
4. Discussing financial matters before making a major commitment into the future can be enlightening as to each partner's attitudes and values. In the course of negotiating an agreement, there will either be a resolution which takes the pressure off the relationship or a decision that this union might not have been the best idea after all. There is a lot of truth in the old adage, "Better now than later".
5. Preparation and planning in the form of a prenuptial or a cohabitation agreement may, through clarification of where each partner stands financially, reduce unrealistic expectations and increase the sustainability of the relationship. In the unfortunate event that the relationship does end, however, such agreements can significantly reduce the emotional anguish, financial uncertainty and cost of a property settlement.
Because negotiation of prenuptial or cohabitation agreements occurs in a unique romantic context, mediation provides an ideal process. Mediation is less divisive and more user friendly, placing significantly less stress on fledgling relationships.
Legal advice remains vital and opinions on the implications of the agreement for each should be sought from suitably trained and experienced lawyers before the mediated agreement is signed.
Denise Britton - Co-Principal Brisbane Mediations
Saturday, April 16, 2011
Friday, April 15, 2011
Food for Thought.
I often find as a mediator that a party will sum something up in a succinct and meaningful way or pass a comment that provides food for thought. Today we did a co-mediation intake for a party who himself practises counselling for a career. When asked what he understood mediation to be, he immediately replied: "Trying to obtain a worthwhile and sustainable agreement without going to court".A rather good way of summing up the purpose of mediation I thought. Later in the same session he volunteered that people have at times asked him, "did your work(as therapist) help you with having a child or did having a child help you more with your work".Bit difficult to answer that one, but interesting to ponder all the same. Mike Emerson
Tuesday, April 12, 2011
Advantages of Mediation
Sometimes I am asked to explain the advantages of mediation. There are many such advantages including the following:
• Mediation can be undertaken at anytime.You don’t have to wait for a court to be available to hear your dispute;
• Litigation is expensive whereas mediation can be cost effective. Court proceedings are often drawn out which increases the costs, whereas mediation can be organised and implemented quickly and usually completed in a day. Of course if the mediation is unsuccessful and the matter proceeds to trial then the cost of the mediation is an additional expense for the parties;
• The parties retain control of the outcome at all times,whereas in the court process you are handing control to a third party and asking him or her to make a decision(which ultimately neither party may be happy with).In mediation, the mediator has no authority to make decisions about the issues, however remains in control of the process;
• At mediation, a party is able to present his or her case and hear the other party’s case at an early stage of the matter and the process allows for commercial or lateral solutions which may not otherwise be available;
• One of the great benefits of mediation to participants is privacy. If the matter is resolved the parties can put the matter behind them and confidentiality can be preserved;
• Speed- the whole process can be organised and “done and dusted” quickly. Mediation is quicker then litigation and this helps the parties to avoid delay and uncertainty;
• Simplicity – the process is far simpler and more user friendly than a trial but of course this brings disadvantages with it as well, as the parties don’t always have the protections that a trial provides;
• Mediation, gives parties “their day in court”. Whilst they won’t be in Court in the usual sense, if they are listened to and have the opportunity to be heard then they can feel part of the process and satisfied that they have been heard;
• Litigation does not always provide a fair result whereas in mediation the mediator is not a Judge and can assist the parties in reaching a resolution that they are both able to live with;
• Mediation is not only cheaper and quicker than litigation but may also save in terms of emotional stress;
• Mediation can help to reduce long term tension and hostility between parties and in so doing improve communication between disputing parties which provides a benefit in terms of future co-operation, particularly where an ongoing relationship is necessary, such as where a separating couple has children;
• Involvement of the parties in the decision making produces a sense of ownership and desire to see any settlement implemented;
• Mediation is a reasonably loosely defined concept and unlike the judicial process is not governed by stringent rules as to how and what the mediator and parties can do. This flexibility is both an advantage and a disadvantage.
In a later blog, I will list some of the disadvantages of mediation,one of which is that agreements reached are often not subject to the scrutiny of the Courts and can at times be criticised for favouring the more powerful party.
Sometimes it is necessary for the parties to travel some distance down the litigation pathway before the matter is ready for Mediation.
There is of course a role for litigation,however mediation can offer very real advantages for parties in the right circumstances.
Mike Emerson Co-Principal Brisbane Mediations
• Mediation can be undertaken at anytime.You don’t have to wait for a court to be available to hear your dispute;
• Litigation is expensive whereas mediation can be cost effective. Court proceedings are often drawn out which increases the costs, whereas mediation can be organised and implemented quickly and usually completed in a day. Of course if the mediation is unsuccessful and the matter proceeds to trial then the cost of the mediation is an additional expense for the parties;
• The parties retain control of the outcome at all times,whereas in the court process you are handing control to a third party and asking him or her to make a decision(which ultimately neither party may be happy with).In mediation, the mediator has no authority to make decisions about the issues, however remains in control of the process;
• At mediation, a party is able to present his or her case and hear the other party’s case at an early stage of the matter and the process allows for commercial or lateral solutions which may not otherwise be available;
• One of the great benefits of mediation to participants is privacy. If the matter is resolved the parties can put the matter behind them and confidentiality can be preserved;
• Speed- the whole process can be organised and “done and dusted” quickly. Mediation is quicker then litigation and this helps the parties to avoid delay and uncertainty;
• Simplicity – the process is far simpler and more user friendly than a trial but of course this brings disadvantages with it as well, as the parties don’t always have the protections that a trial provides;
• Mediation, gives parties “their day in court”. Whilst they won’t be in Court in the usual sense, if they are listened to and have the opportunity to be heard then they can feel part of the process and satisfied that they have been heard;
• Litigation does not always provide a fair result whereas in mediation the mediator is not a Judge and can assist the parties in reaching a resolution that they are both able to live with;
• Mediation is not only cheaper and quicker than litigation but may also save in terms of emotional stress;
• Mediation can help to reduce long term tension and hostility between parties and in so doing improve communication between disputing parties which provides a benefit in terms of future co-operation, particularly where an ongoing relationship is necessary, such as where a separating couple has children;
• Involvement of the parties in the decision making produces a sense of ownership and desire to see any settlement implemented;
• Mediation is a reasonably loosely defined concept and unlike the judicial process is not governed by stringent rules as to how and what the mediator and parties can do. This flexibility is both an advantage and a disadvantage.
In a later blog, I will list some of the disadvantages of mediation,one of which is that agreements reached are often not subject to the scrutiny of the Courts and can at times be criticised for favouring the more powerful party.
Sometimes it is necessary for the parties to travel some distance down the litigation pathway before the matter is ready for Mediation.
There is of course a role for litigation,however mediation can offer very real advantages for parties in the right circumstances.
Mike Emerson Co-Principal Brisbane Mediations
Saturday, April 9, 2011
Children and New Partners
When separated parents re-partner, their children react in a range of ways - some healthy and others destructive.
Each child's unique grief reaction and adjustment to their parents' separation should be considered before introducing them to even the idea of new partners.
After separation, it is most important to maintain open communication between children and parents. Whilst being as honest as possible with them, however, parents should not expect their children to instantly applaud or even accept a decision to re-partner, especially if the other parent sees the new partner as responsible for the end of the relationship. Similarly, children should not be expected to immediately treat a parent's new partner as a parent.
If expected to cope with such a major change prematurely, there is a risk that children will recoil from or even refuse a relationship with the re-parenting parent and that they will align themselves - sometimes exclusively - with the other parent.
The good news is that given time and sensitive support children can adapt to new parenting situations, including quite complex blended families in more than one household. The key to success is to introduce such changes at the child's pace, with support, and with sensitivity.
As children are treated with respect by new partners, trust can grow and relationships independent of either parent will hopefully develop. This process cannot be forced and relies on the maturity and patience of the re-parenting parent, step-parent and, of course, the other parent.
Denise Britton - Co-Principal, Brisbane Mediations
Each child's unique grief reaction and adjustment to their parents' separation should be considered before introducing them to even the idea of new partners.
After separation, it is most important to maintain open communication between children and parents. Whilst being as honest as possible with them, however, parents should not expect their children to instantly applaud or even accept a decision to re-partner, especially if the other parent sees the new partner as responsible for the end of the relationship. Similarly, children should not be expected to immediately treat a parent's new partner as a parent.
If expected to cope with such a major change prematurely, there is a risk that children will recoil from or even refuse a relationship with the re-parenting parent and that they will align themselves - sometimes exclusively - with the other parent.
The good news is that given time and sensitive support children can adapt to new parenting situations, including quite complex blended families in more than one household. The key to success is to introduce such changes at the child's pace, with support, and with sensitivity.
As children are treated with respect by new partners, trust can grow and relationships independent of either parent will hopefully develop. This process cannot be forced and relies on the maturity and patience of the re-parenting parent, step-parent and, of course, the other parent.
Denise Britton - Co-Principal, Brisbane Mediations
Friday, April 8, 2011
Gifts/Loans During Relationship
GIFTS / LOANS DURING RELATIONSHIP
Issues often arise as to how gifts or loans made to the parties during a relationship are to be treated on separation.
It is quite common for parents to advance funds to the parties to assist them during the relationship. Often the advance is made without documentation and although there may be some expectation that the monies may be repaid, if needed at some stage, it is often unclear as to whether the advance is intended as a loan or as a gift to the parties or one of them.
Even in circumstances where there is some form of written agreement, often there is no provision for interest to be paid and no immediate expectation for repayment on the part of the lender.
While the nature of the advance may not be clear at the time, it is common that on separation the parties have very definite views regarding the advance, with one contending it was a gift to the parties and the other claiming it to be a loan.
The Court has a discretion as to how it will treat the advance and often how to exercise this discretion is very difficult.
The Court might look for written evidence or look at what discussions took place at the time of the advance and whether any part of the monies has been repaid or any interest paid.
Even if there is something in writing, that might not be the end of it, as the court may look at how long ago the advance was made and what, if any, repayments have been made.
If the Court considers it is a loan, it still has to look at whether in all the circumstances it is likely to be enforced and this may involve some consideration of the circumstances of the parties who advanced it.
Ultimately it is a matter of the Court weighing up all of the evidence and assessing where the balance lies.
It is not necessary for the lender to intervene in the proceedings between the parties.
Each case is different and the issue of whether an advance is ultimately regarded as a gift or a loan is one for the Court to determine in the particular circumstances of the case.
The Courts have held that in some cases it is appropriate not to take the liability into account or to discount it. This could include a liability that is vague or uncertain or unlikely to be enforced or which was unreasonably incurred or deliberately incurred in disregard of the other party’s entitlement to property settlement.
Family Law however does not operate in a vacuum and the legitimate interests of third parties are not ignored when the court determines the respective rights to property between the parties.
If an advance is not treated as a loan, then it can be regarded as a contribution by one party but this is not a mathematical exercise and will be just another factor to be taken into account in negotiations between the parties or in the exercise of the Court’s discretion, if a Court determination is required.
The surest way to protect an advance is to enter into a written agreement and to register a mortgage but even this may not provide an answer as ultimately the determination of the nature or character of any advance made is a matter for the Court.
The position in relation to gifts is that the party on whose behalf or to whom the gift is made is usually given credit for a greater contribution because of that gift.
However, whilst the advance may be seen as a contribution by one party, parties and indeed the Court often adopt a broad brush approach to contributions and the advance or gift may be submerged by other factors.
The critical area of contention is in determining the intention of the donor.
Mike Emerson,
Co-principal Brisbane Mediations
Issues often arise as to how gifts or loans made to the parties during a relationship are to be treated on separation.
It is quite common for parents to advance funds to the parties to assist them during the relationship. Often the advance is made without documentation and although there may be some expectation that the monies may be repaid, if needed at some stage, it is often unclear as to whether the advance is intended as a loan or as a gift to the parties or one of them.
Even in circumstances where there is some form of written agreement, often there is no provision for interest to be paid and no immediate expectation for repayment on the part of the lender.
While the nature of the advance may not be clear at the time, it is common that on separation the parties have very definite views regarding the advance, with one contending it was a gift to the parties and the other claiming it to be a loan.
The Court has a discretion as to how it will treat the advance and often how to exercise this discretion is very difficult.
The Court might look for written evidence or look at what discussions took place at the time of the advance and whether any part of the monies has been repaid or any interest paid.
Even if there is something in writing, that might not be the end of it, as the court may look at how long ago the advance was made and what, if any, repayments have been made.
If the Court considers it is a loan, it still has to look at whether in all the circumstances it is likely to be enforced and this may involve some consideration of the circumstances of the parties who advanced it.
Ultimately it is a matter of the Court weighing up all of the evidence and assessing where the balance lies.
It is not necessary for the lender to intervene in the proceedings between the parties.
Each case is different and the issue of whether an advance is ultimately regarded as a gift or a loan is one for the Court to determine in the particular circumstances of the case.
The Courts have held that in some cases it is appropriate not to take the liability into account or to discount it. This could include a liability that is vague or uncertain or unlikely to be enforced or which was unreasonably incurred or deliberately incurred in disregard of the other party’s entitlement to property settlement.
Family Law however does not operate in a vacuum and the legitimate interests of third parties are not ignored when the court determines the respective rights to property between the parties.
If an advance is not treated as a loan, then it can be regarded as a contribution by one party but this is not a mathematical exercise and will be just another factor to be taken into account in negotiations between the parties or in the exercise of the Court’s discretion, if a Court determination is required.
The surest way to protect an advance is to enter into a written agreement and to register a mortgage but even this may not provide an answer as ultimately the determination of the nature or character of any advance made is a matter for the Court.
The position in relation to gifts is that the party on whose behalf or to whom the gift is made is usually given credit for a greater contribution because of that gift.
However, whilst the advance may be seen as a contribution by one party, parties and indeed the Court often adopt a broad brush approach to contributions and the advance or gift may be submerged by other factors.
The critical area of contention is in determining the intention of the donor.
Mike Emerson,
Co-principal Brisbane Mediations
Thursday, April 7, 2011
Australia World Leader with Mandatory Mediation in Family Law Parenting Disputes
Los Angeles Attorney, Mark Baer, has praised Australian reforms in Family Law whilst expressing concerns about recent Californian legislation likely to increase time, expense and the adversarial nature of Family Law matters. According to Mr Baer, "It's time for our (USA) government to affect (sic) a reform in the family law system to shift the emphasis from litigation, as the dominant practice, to mediation ... Litigation is not only more expensive but it is also more damaging to the family system which still has to maintain contact and function, to some extent, when there are children involved." Mr Baer comments on the British introduction from 6 April 2011 of a requirement for divorcing couples in England and Wales to undergo mediation for both parenting and financial issues before being allowed to access the courts. He points out that this reform follows the Australian example. In Australia, except in certain exceptional circumstances, Registered Family Dispute Resolution Practitioners must issue Certificates indicating that parties have attempted to resolve their parenting disputes at mediation before an application can be made for intervention by either the Family Court or Federal Magistrates Court. Denise Britton - Co-Principal, Brisbane Mediations http://mwne.ws/gMJI0f
Wednesday, April 6, 2011
Don't involve your adolescents in your post separation disputes
Separated and disputing parents of adolescent children need to guard against imparting any (even unintentional) encouragement to their children to take their side against the other parent. Teenagers already have their own developmental issues to deal with - for example, finding a way to individuate from parents whilst still maintaining close attachments, pursuing serious educational and career goals, developing adult type relationships and establishing their own identity in the world. They should be relieved of any explicit or implicit onus to align themselves with one parent or the other. Parents who alienate their adolescents against the other parent do so at both their children's and their own peril. There is a risk to the mental health of the adolescent and to the later relationship between the alienating parent and the alienated child. Denise Britton, Co-Principal Brisbane Mediations
Subscribe to:
Posts (Atom)