In today’s modern era, technology is advancing exponentially, from internet banking, to online grocery shopping, almost anything can be done online from the comfort of your own home.
It appears as though it will be only a matter of time before it becomes more common to resolve your family law disputes online than to resolve them in the real world. However, should divorce and the settlement of your family law matters (including financial and children’s matters) be pursued online?
Recently, an article titled “Quick e-divorce to save couples time and money” was published in the Australian which discussed the funding received by Legal Aid to ¬develop an online family law dispute resolution system (‘ODR’) which is designed to save separating couples time and money.
The article notes Legal Aid’s high hopes for ODR, estimating that approximately 20 per cent of all family law disputes could be resolved by the system.
The current divorce rate
According to the Australian Bureau of Statistics, there were 113,595 marriages registered in Australia in 2015. In the same year 48,517 divorces were granted.
According to the above statistics, it would appear that we are nearing a 50% divorce rate.
How would ODR work?
It is proposed that ODR will review the dispute and provide the separating couple with information regarding whether their matter should go to court based on results in similar cases.
While it is advantageous insofar as it saves the parties money and time by giving them the convenience of accessing this free service at a time which suits them, there are disadvantages which need to be considered.
Of the more pronounced disadvantages, we note that ODR will more than likely:
- not be individually tailored;
- not be easily accessible for those who are not “online savvy”; and
- not offer avenues to correct any mistakes once settlement is finalised.
Legal services have conventionally been delivered by lawyers on a face-to-face basis to ensure that the legal solutions offered to clients are individually tailored.
The reality is that some legal issues are simply too complex and multi-layered to be dealt with via a computer-generated system as ODR is only able to make an assessment based on what information the user chooses to provide, which leaves room for error in cases where important information is missed.
The risks of not getting advice regarding all matters to a property settlement
In Australia, proceedings are dealt with on a “case-by-case” basis in accordance with legal principles established by the legislation and case law. This means that the Court considers each case on its individual facts and can apply discretion determining the outcome, therefore it is not as simple as ticking boxes to get a “one size fits all” outcome.
The risks involved in not getting the legal advice to suit your specific situation could result in many issues, including but not limited to the following:
- You will not get advice pertinent to your financial entitlements and obligations; and
- If you do not finalise your financial relationship after separation and within the time limits, it does not mean either party is precluded from making a claim for property settlement later on if they can demonstrate to the Court that it is necessary leave to be granted to them to do so.
A common misconception is that the Court will only look at the asset pool at the date of separation. This is not what occurs; the Court looks at the asset pool at the date of proceedings.
It is important to note the time limits that apply for different couples:
- With some exceptions, once a couple has divorced, they must commence proceedings for a property settlement within 12 months of their divorce; and
- For de-facto couples, property proceedings must be commenced or property settlement finalized within two years of their separation