Attwood Marshall Lawyers Family Law Associate Laura Dolan addresses a common concern women face when considering separating from their partner – what happens when you want to leave but your spouse is the primary income earner? Don’t stay in a relationship that is no longer healthy. There are options available.
“I want a divorce, but I don’t have money for legal fees, and I’m worried I won’t be able to afford to leave and be on my own.”
This fear of not having the financial resources to leave a relationship (and fund legal representation to finalise financial and property matters) can trap individuals in unhappy or even unsafe relationships. But financial constraints don’t have to prevent you from accessing justice and moving forward with your life.
Here, we explore your rights, the dangers of self-representation, and funding solutions like JustFund that can help you access quality legal representation regardless of your financial situation.
Property settlements: non-financial contributions matter
Being the non-breadwinner does not mean that you are not entitled to a fair share of assets when you and your former spouse decide to go your separate ways. The preconceived idea that couples must split assets 50/50 is untrue. Every matter is dealt with on a case-by-case basis.
When deciding who gets what, the court takes into account the net property pool, each party’s financial and non-financial contributions to family life, the future needs of both parties – including age, health, income earning capacity, and care of children – and what is just and equitable.
Non-financial contributions such as homemaking and parenting hold significant value. If you sacrificed your career and stayed home to care for children or manage the household while your partner earned income, remember that these contributions are factored into the settlement.
You can proceed with a property settlement immediately following separation – you don’t need to wait for divorce (and keep in mind that you are required to wait a minimum 12 months from your separation date before you are eligible to apply for divorce).
It’s also important to be aware of time limits for finalising property matters. Once your divorce is granted, you have 12 months to settle property matters or apply to court for orders. De facto couples have two years from separation to finalise these matters.
Why self-representation can be a costly mistake
When facing financial constraints, many people choose to represent themselves in legal proceedings. It can seem like the practical choice. However, family law matters are some of the most complex legal matters that can end up before a court. And that is not factoring in the emotional toll these legal disputes take on all parties.
Just because you can do it yourself doesn’t mean you should.
The risks of going it alone include:
- Lack of legal knowledge and court procedures can hinder your ability to navigate the system effectively. You don’t know what you don’t know.
- Negotiations can become highly emotional. Self-represented individuals often find it difficult to remain objective when dealing directly with a former spouse, which can prolong disputes and extend proceedings.
- Without legal expertise, you may fail to communicate your situation and arguments effectively in court.
- You risk overlooking critical rights or failing to advocate for them adequately.
When self-represented litigants overlook nuances or fail to anticipate next steps, matters drag out, resulting in further court attendances and unnecessary costs.
Case study (names have been anonymised):
Tom engaged a solicitor for his property and parenting matter, but his former spouse chose to represent herself. She struggled to comply with disclosure obligations, didn’t understand procedural deadlines, and repeatedly filed incorrect documents.
What might have been resolved within months dragged on for over two years, with multiple adjournments and additional court dates. In the end, the Court ordered the self-represented party to pay Tom’s legal costs due to the unnecessary delays.
Family lawyers have extensive knowledge of legal principles, court procedures, and rules of evidence. They have access to research databases, expert witnesses, and negotiation skills that significantly impact outcomes, often achieving favourable settlements outside of court.
Moreover, the mental toll of self-representation, particularly in emotionally charged family law cases involving parenting arrangements, property settlements, or domestic and family violence, should not be underestimated.
A lawyer is there to support you, fight for you, and help carry the burden. You just need to do your homework and pick the right law firm to act for you.
Are you still convinced self-representation is the way to go?
If you have weighed up the risks and are still considering self-representation, it is imperative to consult with a family lawyer before making your final decision.
After receiving advice, it may be the case that you opt for a limited-scope representation instead of completely going it alone, where a family lawyer assists with specific parts of a case rather than its entirety. For example, you may find it beneficial to obtain some legal advice for enquiries related to asset pool issues, valuations and what your entitlement may be in a property settlement.
There are many options available.
The Federal Circuit and Family Court of Australia advises parties to ask the following questions when deciding whether to represent their own interests:
- Do you have the time and resources to prepare a matter?
- Do you have the necessary legal skills?
- Can you speak confidently to the judge or registrar who will hear your case?
Remember, informal agreements about property division are not legally binding. Make your agreement legal through a Binding Financial Agreement or Consent Orders drafted by experienced lawyers to avoid further claims down the track.
The funding gap: caught in the middle
Many people don’t qualify for legal aid due to strict criteria, including means testing and funding guidelines. This creates a dangerous gap where people are caught between not being eligible for legal funding yet still struggling financially to afford appropriate legal representation.
They think they either must represent themselves and risk a costly outcome or stay in an unhappy relationship because they can’t afford to leave.
However, you can’t let financial concerns force you to represent yourself against experienced legal practitioners. Give yourself the best chance of achieving a desirable outcome by seeking guidance from a legal practitioner who can support you and negotiate effectively. To assist individuals who require financial support during these difficult times, there are funding options available.
JustFund: Accessible Legal Representation
As an accredited JustFund partner, Attwood Marshall Lawyers offers clients an exclusive funding option for eligible family law matters. JustFund is Australia’s premier family law finance provider, offering a line of credit designed for individuals going through separation.
How it works:
- Make an application (we can apply on your behalf),
- Once approved, draw down on your line of credit as needed to pay legal bills,
- You only repay when you finalise your legal matter,
- Repayment comes from your settlement proceeds.
Unlike traditional loans, JustFund does not focus on your credit score, employment history, or current income. It assesses your legal entitlement on a case-by-case basis. This is crucial if your spouse is the breadwinner – you may not have current income or assets in your name, but you do have a legal entitlement to a property settlement.
Assessment typically takes one week. Once approved, you e-sign an Agreement and Letter of Instruction, and JustFund advances funds for your legal expenses until your matter settles.
Attwood Marshall Lawyers – helping families resolve disputes with as little conflict as possible
The fear of not affording legal representation shouldn’t trap you in an unhappy relationship. With options like JustFund and deferred payment arrangements, professional legal assistance is accessible regardless of your current financial position.
Our family law team is experienced in parenting matters, divorce and separation, property settlements, and binding financial agreements.
If you need assistance or want to discuss funding solutions like JustFund, contact our Family Law Department Manager, Donna Tolley, on 07 5506 8241 or email dtolley@attwoodmarshall.com.au.
Our team is available at offices in Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
