Zeev Vinokurov: Our family law system is a mess

Given the ongoing debate over same-sex marriage, it’s worth asking whether our family law system should cover anyone, gay or straight. Getting separated, divorced and dividing up property in Australia can take years and cost tens of thousands of dollars or more. It will continue to do so unless it is reformed and becomes clear and predictable.

Problematically, family law does not have any clear rules about dividing property when married people or de facto couples break up. Instead, a judge must decide how to fairly allocate property based on what a person has contributed financially or in terms of housework or childcare to the relationship. A judge must also decide if a de facto relationship even exists, which can be uncertain.

Because nobody can confidently predict what the judge will do, people spend years and exorbitant sums on lawyers to argue that they deserve more of the marital property. Ex-partners often undermine each other in front of the court and their kids to justify their arguments. They drive their families farther apart while putting their financial lives on hold for years. They are left unable to move on. The system is a major cause of family law litigation and it can leave poorer couples penniless.

The current system should be replaced with accessible, low-cost and basic prenuptial agreements. For example, a basic agreement may state that a person owns everything they bring into a relationship and that everything purchased during a relationship is owned equally by the couple. This agreement could consist of a few boxes to tick at the end of a marriage certificate before it is signed. Those who want a different arrangement can agree to it in writing.

While prenuptial agreements are legal in Australia, the law is too complex and prenuptial agreements are sometimes unenforceable. This can occur if children are born or if one partner does not see a lawyer—or if the lawyer does not give proper advice. This increases the cost of an agreement, undermines certainty and creates more litigation. Couples should have the right to choose how they divide their property with a minimum of fuss.

Even applying for a marriage or divorce is too complicated. It takes at least a month to register a marriage. It takes over a year of separation to get divorced, after which you pay filing fees, legal costs and wait for the divorce application to get processed. People should be allowed to get a simple, single page marriage or divorce certificate without putting their life on hold. Yes, a tiny minority might take that decision lightly but the bulk of us won’t.

The family law system should give couples clear expectations about what will happen to their lives and property after they break up. As everyone in the system recognises, right now it is expensive, time-consuming, and emotionally draining. By contrast, simple prenuptial agreements can empower couples to decide what to do with their property if they break up.

Vladimir “Zeev” Vinokurov is a solicitor practising in family law. The views expressed here are his own. This op-ed first appeared at The Spectator Australia.

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36 Responses to Zeev Vinokurov: Our family law system is a mess

  1. RobK

    Zeev,
    You’re a better man than I tackling this porcupine. I suspect your observations and solutions would be positive overall.

  2. Entropy

    For example, a basic agreement may state that a person owns everything they bring into a relationship and that everything purchased during a relationship is owned equally by the couple.

    Uh huh

    https://youtu.be/ZW8zvaTRuGo

  3. Zulu Kilo Two Alpha

    I went through the Family Law Court, in Western Australia, thirty years ago. I had substantial assets, we were married less then five years, and there were no children involved. Under the guidelines as to a property settlement at the time, what you were entitled to receive, was what you had contributed in the first place.

    Fair enough, says I, but the lady concerned had been listening to the shrieking sisterhood, telling her that she was entitled to half of everything I owned, and that’s where the process got messy….

  4. Empire GTHO Phase III

    Some sensible ideas there Zeev, but until the majority of the victims of Murphy’s laws are well paid women, there is zero chance of reform.

    The FLA is the jewel in the crown of misandrist feminism.

  5. val majkus

    Fair enough, says I, but the lady concerned had been listening to the shrieking sisterhood, telling her that she was entitled to half of everything I owned, and that’s where the process got messy….

    seen that happen Zulu, remember one case where the wife was married for 1 year and 1 day before separating and claiming 50% of the husband’s assets due to her mistaken perception that’s what she was owed. We quickly succeeded in resolving her mistaken perception. The hardest property cases to resolve IMHO are farming family cases where there’s an element of future expectation of inheritance applied to the farming party to the marriage by judges attempting to make a fair settlement. Those cases also usually have not much cash available to satisfy an outgoing spouse and that makes those cases particularly difficult.

  6. H B Bear

    Litigation of any kind tends to drive normal people kind of insane but Family Court stuff is a special kind of madness. Hand the whole thing over to King Solomon with a chainsaw.

  7. Stimpson J. Cat

    The biggest problem with marriage is wamens.
    The only consolation about Same Sex Marriage eventually becoming reality is what lesbians will do to each other when they divorce.
    It will be very very ugly indeed.

    😁

  8. Zulu Kilo Two Alpha

    seen that happen Zulu, remember one case where the wife was married for 1 year and 1 day before separating and claiming 50% of the husband’s assets due to her mistaken perception that’s what she was owed

    Obvuisly, I don’t know if you practice family law or not, but I saw a case in the A.D.F, where the split occurred where he was hosted to Townsville, and she didn’t want to go.

    He had to borrow enough to pay his wife out, based on his Defence Force Retirement Benefit Fund payout, if he had gone on to complete twenty years service.

  9. val majkus

    Obvuisly, I don’t know if you practice family law or not

    used to Zulu, retired these days … how long was the husband in that case married before the separation?

  10. Zulu Kilo Two Alpha

    used to Zulu, retired these days … how long was the husband in that case married before the separation?

    Less then five years, and there was one child. I won’t ear bash you, good night, but he was a friend of mine, and I did help pick up the pieces.

  11. EvilElvis

    Sort out the child support agency while you’re at it chief. Now that, would be a challenge!

  12. val majkus

    yep, superannuation as a component of property settlements was and I think remains problematical. I’ve certainly seen some resultant injustices, not sure how that could be dealt with in pre nups, in any event, good on you for being a friend to him

  13. Bela Bartok

    Mine was relatively easy – I just bartered cash for more access to my daughter. Each extra day I’d lob in more $$ to sweeten the deal.
    She walked away with (most of) a house, I walked away with more custody of said daughter. Job done.
    Just find what the other person wants and trade against it.

    Most wymminses want the $$ now the sisterhood has convinced them marriage=slavery.

  14. Zulu Kilo Two Alpha

    Sort out the child support agency while you’re at it chief. Now that, would be a challenge!

    I’m punishing the Scotch, but where does a man go, where he is denied access to his children, despite a Family Law Court order, – there was no suggestion of anything untoward – but he is expected to make Child Support Payments to support those children, and he can’t find out where those payments are being forwarded to?

  15. Zulu Kilo Two Alpha

    used to Zulu, retired these days … how long was the husband in that case married before the separation?</blockquote

    No disrespect intended, but when you're serving in the A.D.F. in a unit, with a fifty % divorce rate, you do tend to get rather cynical……

  16. EvilElvis

    Who would know Zulu?!?

    I’m ok with the whole ‘provide for your kids’ thing, but ffs, they don’t even pretend it’s about the kids!

    Sorry to go off topic slightly. I am a lucky one that mediation worked out for and no court required. Still walking a little funny 8 years on though…

  17. Jimf

    Mandatory pre-nups for the big stuff a good idea. All things being equal and fair ,the time to agree on this is when couples are “in love”! If it was law, removes emotion and accusations at a time of presumably goodwill. Also would be an alarm bell in advance if objections occur. Company Directors ( eg small business partners) don’t create Terms of Agreement after the shit has hit the fan.
    The legal world would squeal about this initiative,and that’s all you need to know to conclude it’s a good idea.

  18. Motelier

    I see and hear horror stories when the CSA gets involved in a breakup.

  19. John Constantine

    The most prolific serial killers in Australia’s history are operating with the enablement of the divorce court.

    Any other industry with death rates, and gender specific death rates at that, generated solely by contact with the industry would be banned as toxic.

    Any other professionals with death rates among otherwise healthy people that deal with them like divorce courts have, these killers would be answerable for the dead bodies.

    Australia’s divorce courts, double-oh licenced to kill.

  20. stackja

    Barwick started all this then Whitlam.
    Lionel Murphy legacy lives on.

  21. Sydney Boy

    I was quoted $6000 for a pre-nup. That’s a lot to pay for something that I’m not even sure the Family Law Court will accept.

  22. Botswana O'Hooligan

    I always found it easier to give them the lot and walk away even tho it cost about a million each time (twice) One of my sons didn’t take that advice and has just been cleaned out of everything, no house, no car, and has had to sell half his practice. The lady in question never worked, can’t cook and never did, never cleaned, washed or ironed and never looked after the kids. So much for no fault divorce and the justice system.

  23. sfw

    We had 4 kids, the children initially spent 50% time with mum 50% me. The (female) family court judge awarded her 70% of everything and that the kids live with her 70% of the time, which is what she asked for. Withing a few weeks the kids were with me all the time except for every second weekend, she was still collecting family allowance and child support. I tried to stop paying the support and claim the allowance and she took me back to court to enforce the original order. She would do this every time the I tried to claim for the kids or reduce child support. I couldn’t afford legal representation so I had to live with it. I also paid all the private school fees and everything else.

    The court is a rank abuse of power in favour of women.

  24. Rabz

    The court is a rank abuse of power in favour of women.

    For this reason alone both the family kangaroo court and the CSA should be abolished. Although I’d prefer a far more “robust” approach to their destruction, given what I’ve seen them do to friends and family.

  25. EvilElvis

    sfw,

    A terrible but unfortunately typical situation. I live in the knowledge that there is a high potential of at least one of my three boys going through our current situation with a break up in their lives. I look forward to my ex’s reaction towards the system and certain woman then…

  26. Driftforge

    Used to be we had a nice clean public pool here. But over time it has become a little mucky. Well, more than that these days; its a downright mess. It has gotten to the point where people are even questioning whether we just let folks take a dump in there and accept that as the new normal. Some folks have put in the work required in there own little area, and they are doing kind of ok. But most people are really just questioning why anyone would go for a swim.

    Thing is, people who go swimming are healthier, and more productive. They have more kids, and their kids turn out better. And the community is so much stronger when everyone is expected to go swimming.

    But the pool is a mess. Maybe people lose sight of this; maybe they think cleaning up the pool is just too much hard work. Maybe they think people have just gotten used to it being the way it is. But the result is you get folk like Zeev who look at the situation and think the best way to help is to make it easy to stop swimming.

    When what we actually need to do is clean the stinking pool.

  27. Slim Cognito

    Wasn’t it John Singleton who said that he was done with marriage? Instead, every ten years, he would find a woman who hates him and buy her a house.

  28. Roger

    Any society which wants to thrive and prosper honours and protects marriage as its fundamental institution.

    Divorce should be hard to obtain and property settlements contingent upon fault.

    Nothing else is just, and aren’t courts meant to be in the business of dispensing justice?

  29. Winston

    The current system is obscene, speaking from recent awful immersion in it. However, it’s hard to objectively see a solution. The right to spend an illogical fortune with lawyers to argue a case is a hard one to extinguish.

    The best I can offer is that I believe more should be made of a failure to mediate. At the moment, there is effectively a zero consequence to failing to mediate an outcome that would be expected to be ‘fair’ in the eyes of the court. There’s no legal consequence for one party not even bothering to try.

    The cost of mediation is a small fraction of litigation. The case law on marriage separation should have enough data to provide clear guidance of what’s broadly deemed to be fair outcomes. If one party fails to mediate an outcome within those guidelines using mediation and thereby forces a resolution via court, with all the costs that involves, there should be a moral and financial hazard for doing so if the court finds they were being unreasonable all along. A mediator’s assessment of who is rational and who is being unreasonable should be taken into account by a judge if mediation fails. The possibility of paying the other side’s defense to argue a losing case should short circuit needless court hearings, at least for ‘standard’ separations.

    At least, I think that would help act against the slow-bake bastardry I faced.

    I’d also add to that, that outside of clear evidence of crime, abuse or drug use, it should be near impossible for a mother to relocate with children away from a loving and involved father (let’s face it, the reverse virtually never occurs). The current system too often ends up being state sanctioned abduction.

  30. Boambee John

    Roger at 1149

    Nothing else is just, and aren’t courts meant to be in the business of dispensing justice?

    IIRC one of the High Court justices (might have been Kirby) said that thd court was in the business of administering the law, not dispensing justice.

    Then judges decided they should dispense their ideas of justice. Not sure it was an improvement!

  31. Winston

    Yes – there’s no pretence of ‘justice’ in the family law system. There’s only outcomes.

  32. Roger

    IIRC one of the High Court justices (might have been Kirby) said that thd court was in the business of administering the law, not dispensing justice.

    We’re not far away from machines being able to “administer the law” if that’s what he thinks the job is about.

    We’ll save a fortune on judge’s salaries.

  33. Zulu Kilo Two Alpha

    The current system too often ends up being state sanctioned abduction.

    An apt description. It’s the mother’s right to take the children with no evidence of abuse or crime, without bothering to supply any address, bur God help the father who gets behind on the child support payments, while being denied access to his children.

  34. Roger

    It’s the mother’s right to take the children with no evidence of abuse or crime, without bothering to supply any address, bur God help the father who gets behind on the child support payments, while being denied access to his children.

    precisely the fruit of judges more interested in “administering the law” than delivering justice.

  35. duncanm

    I just went through this, and fortunately, both of us managed to remain adults without hate and spitefullness coming into it.

    50/50 split of kids and all assets. Only solicitors involved to do the paperwork (a few grand each), and sign-off from the family court to lock it all down.

    I think I got off lightly. The solicitor certainly kept praising me on how easy our split was compared to most others he is engaged in.

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