It is generally accepted that the grieving cycle of denial, anger, bargaining, depression and acceptance is the common emotional experience which follows the breakdown of a relationship.
Whilst for some, the grieving has been done “on the inside” for many years before informing the other partner about ending the relationship, for others, this news can be completely unexpected. For those persons, the natural reaction is to seek time to explore the possibilities of reconciliation, change and/or emotional adjustment.
Ideally, no decisions about division of parenting responsibilities for children, division of assets or even reconciling should be made whilst either party is under the heavy emotional influence of an incomplete grieving cycle and consequently the natural reaction often for both sides is to try to put off these uncomfortable decisions for as long as possible.
Unfortunately, there are many adverse consequences from inordinate delay. Below are a few examples:
- Valuation of assets – asset values are not frozen at the date of separation but instead run with time and are only fixed at the date when the property division exercise is to be concluded by either agreement or imposition of Court Order. In an unstable market featuring either falls or gains the amount by which an asset might have appreciated or depreciated in value in the post-separation period and arguments about whether that fall or gain ought to be wholly quarantined or otherwise disproportionately shared between the spouses is an argument that can occupy a tremendous amount of resources and usually results in a very large legal bill.
- Post-separation contribution arguments – another area which often becomes hotly contested in prolonged unresolved separations are arguments for reimbursement or contribution to the servicing of liabilities that might have been made wholly or disproportionately by one spouse over the other. The accounting required to persuade an unwilling spouse to make these contributions is immense and often becomes economically unviable ie. the personal time and cost of lawyers and accountants to assist in vetting and presenting the figures will often far outweigh the amount of money that is being sought for reimbursement.
- Stale evidence – in many cases, evidence about highly relevant past historical events tends to erode, if not totally disappear over time. Persons memories fade about things, documents are misplaced or inadvertently destroyed etc. As a consequence what might have been a legitimate claim with strong prospects of success can be weakened to the point of being again completely unviable.
- Limitation periods – for a de facto couple, the right to bring a property settlement claim expires after two years from separation and for a married couple, one year from the date of divorce. There have been many cases where spouses put off the “ugly” exercise of dividing up property in ignorance of the limitation period and were left either unable to bring a claim or with the task of convincing the Court to permit them to commence property settlement proceedings out of time. Occasionally, the civil standard limitation period of six years also applies where there are commercial transactions, (for example, loans between family members or business partners) which are not called up for fear of the emotional response and for which delay brings the same outcome.
- Seige Mentality – a common example is occupancy of the matrimonial home – if one partner moves out and delays the news that the home has to be sold, the other can easily become deluded into the belief that they have permission to remain in the home until they are ready to sell according to their own timetable. Once these delusions take hold, the entrenched spouse can become very difficult to move.
- Emotional Energy – resolving a Family Law case is very much like a marathon not a sprint. Delaying the start of that exercise however, is the emotional equivalent of jogging on the spot. By the time they actually start the process therefore, some are so emotionally depleted that they eventually run out of the energy needed to deal with the hard decisions and end up taking “whatever they can get just to get out of it”.
It can sometimes take an ex-partner months or even years to fully move through their grief. Whilst patience is an undoubted virtue, the above examples hopefully demonstrate how that virtue can in some circumstances end up costing very dearly. Whilst there are certainly occasions where pressing a Family Law claim in respect of either property or children’s issues can be enormously counter productive due to it being too soon after separation, leaving things too long can be equally, if not more devastating. When faced with this scenario, the good old “band-aid” rule probably best applies – unfortunately you just have to “rip it off”.
Michael Zande is a Queensland Law Society accredited family law specialist with over 20 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.