How to choose the best family lawyer for your divorce and property settlement?

by Sarah Bevan Family Lawyers

1. Introduction

In Australia a lawyer may practise family law without specialising in that area. It is therefore important to retain the best family lawyer for your divorce and property settlement. A failure to do so may be costly and may not provide you with the best possible outcome for your matter. Although a highly experienced and skilled lawyer may charge a higher hourly rate than a general practice lawyer, your overall costs may end up lower given that the best family lawyer will be able to guide you towards the resolution of your case more efficiently.

2. Requirements to practice law in Australia

Section 17 of the Legal Profession Uniform Law 2015 (NSW) illustrates that to practice Family Law in Australia a lawyer must:

  1. Hold an approved law degree;
  2. Complete a practical training course or twelve (12) months supervised practical legal training; and
  3. Be a fit and proper person to practice law.

Section 49(1) of the Legal Profession Uniform Law 2015 (NSW) also stipulates that a lawyer is required to be supervised in the first part of their career. The period of supervision may be 18 months or 2 years depending on the type of supervision undertaken.

None of these requirements stipulate that a lawyer must have family law experience, or be trained by an experienced family lawyer in order to practice family law. It is thus possible to engage a generalist lawyer without the optimum experience to handle your divorce and property settlement. Given the complex nature of Family Law work this poses risks to you as the client. These risks may be lowered by seeking the services of an accredited Family Law Specialist.

3. Accredited Family Law Specialists

Accredited Family Law Specialists are lawyers recognised by the Law Society of NSW (LSNSW) who specialise in Family Law. These lawyers possess advanced skills and knowledge including those relating to:

  1. Divorce;
  2. Nullity;
  3. Rights over children;
  4. Property settlements;
  5. Child maintenance and support;
  6. Financial Agreements which are documents to resolve your property settlement before, during or after a marriage or de facto relationship; and
  7. Other skills directly relevant to the practice of Family Law.

To become an Accredited Family Law Specialist, lawyers must have been practising for a minimum of 5 years with at least 3 years Family Law specific experience. The lawyer must then complete Family Law specific practical and written assessments to the satisfaction of the LSNSW. Once accredited, the lawyer must complete additional Family Law specific ongoing training each year.

Further information regarding Family Law Accredited Specialists is available at the following webpage:

http://www.lawsociety.com.au/community/findingalawyer/SpecialistAccreditationScheme/index.htm

4. Risks and problems

4.1 Unrealistic expectations

A lawyer who provides unrealistic advice may lower your chance of resolving your case quickly and cost effectively. If your case unnecessarily proceeds to court, there will be increased legal costs and greater uncertainty about the outcome of your case, plus you will inevitably suffer increased stress. If your case is not handled efficiently and in accordance with the Court Rules, you may also be at risk of paying part of the other side’s legal costs in accordance with section 117 of the Family Law Act

4.2 Use of a barrister

Some lawyers routinely use barristers for various aspects of the work. This is particularly so if the lawyer is inexperienced in family law and unsure how to progress your property settlement. Barristers’ advice in these circumstances is an additional cost to you as the client. Although the use of a barrister is appropriate in some circumstances, the best family lawyers will be able to advise you fully on your case without the need to continually seek input from a barrister. 

4.3 Delay of your case

If your case is not properly prepared, it will not be able to progress, especially if your case is before the Court. This means that your case is delayed (adjourned if in Court). As a result you also incur legal costs and your property settlement takes longer to resolve. In these circumstances you are also at risk of incurring a portion of the other side’s legal costs as previously discussed in 4.1. Specialist family lawyers are much more familiar with the specific requirements for the proper preparation and presentation of your case.   

4.4 Financial Agreements

If both you and your partner consent, you may elect to enter into a financial agreement prior to, during or after your marriage. These agreements allow your property settlement to be resolved at any stage of your marriage or de facto relationship without a court. If finalised prior to separation the agreement may provide certainty regarding your property settlement if you later separate. After separation these documents may form the basis of an out of court agreement.

These documents are generally complex in nature and only some lawyers may present this option to you. A failure to elect the best lawyer may limit the options available to you when looking to resolve your property settlement.

Worse consequences may occur where these agreements are poorly drafted or a lawyer fails to adequately advise you as to the agreement. Cases such as Hoult & HoultFevia & Carmel-Fevia and Sullivan & Sullivan outline these risks. In each case the Financial Agreements drafted by family lawyers were reviewed by the court. In all three cases the agreements were rendered unenforceable due to poor advice from the lawyer or incorrect execution of the agreements.

In these circumstances it was for the court to determine the property settlement even when all parties sought to avoid going to court. As a result both parties incurred unnecessary legal costs and increased risk that their agreed property settlement would differ to their intended agreement. 

5. Summary

It is likely that retaining the best family lawyer may reduce your legal cost and achieve optimum outcomes for your custody or property settlement. An accredited family law specialist has family law specific skills and experience recognised by the LSNSW. Choosing a team of family lawyers headed by an Accredited Specialist in family Law to directly handle or supervise your matter provides for the best possible family law representation and outcomes.

 

Sarah Bevan Family Lawyers are a team of specialist family lawyers sydney, headed by an Accredited Family Law Specialist recognised by the LSNSW. This places us in a position to obtain the best possible outcome for your divorce and property settlement. Our Divorce Lawyers are available in our Sydney, Surry Hills, Mosman & Parramatta offices.



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