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.