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Protecting what you hold dear

24 Jul 2017

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By Gillian Stuart, Family Law specialist, Aspiring Law

If you ask people, as I have, what they understand a family lawyer’s key role to be, chances are the answer will revolve around filing oodles of divorce applications – something I, indeed, do … every now and then.

Most of us have loved ones we want properly provided for, and protected, during our lifetime and beyond, together with assets that should be safeguarded from various perils, in good times and bad.

Helping people realise these aspirations is what’s really at the heart of a family lawyer’s eclectic, and often, complex workload. To me, it’s important every layperson has a sound grasp of what family law actually involves, because it’s a legal area that many, if not all, of us will inevitably be affected by and drawn into at some point in our lives.

In a nutshell, there are two branches to the family law specialty, with crossovers in between. Break-ups tend to be tough, all the more so when there are children and assets involved. In this realm, my role can be incredibly broad, but is always firmly vested in protecting my client’s best interests, be it around care of children issues, the division of assets, family violence, or all three. The second branch, and the one most people don’t realise sits under the family law umbrella, is legal life planning, encompassing contracting out agreements (otherwise known as “pre-nups”), wills, trusts and enduring powers of attorney. This is “prevention is way, way better than cure” territory.

A guide through the grey

If your relationship breaks down where children and/or assets are involved, you’ll likely benefit from turning to a family lawyer to guide you through what can sometimes prove to be a complex maze. In some cases, taking legal advice is actually required by law.

For sorting out assets, the Property (Relationships) Act 1976 is central and, generally, calls for all relationship property to be divided equally where a relationship has lasted three years or more. But … there are quite a few buts. Disputes often develop – did the relationship, in fact, meet the three-year threshold, or are some assets not joint? Situations commonly arise where everyone agrees what the asset pool available for division is and that it’ll be split down the middle, but then arguments emerge around who specifically gets what. An assessment may need to be made as to whether one party is entitled to more than the standard 50 percent, for example, on the grounds of economic disparity, and, possibly, spousal maintenance payments are in order. Matters tend to get even more complicated where business interests and trusts are in the mix. And, that’s just for starters.

One of the most difficult aspects of my work comes when psychological, physical and sexual violence is involved, and whenever children are adversely affected by a relationship breakdown. In one of the most heartrending cases I’ve been involved in, both of a separating couple’s beloved children were terminally ill with a rare medical condition. The parents were arguing about where the children should live. One child died suddenly partway through the court case, much sooner than expected. The parents still continued to argue about the surviving child.

While far fewer care of children battles end up in court here than in my native Scotland, a good family lawyer is still a fountain of information, a strong advocate and a gateway to support systems and resources for separating parents. And, of course, a family law specialist will stand up for you in court, if that does end up being the only route to resolution.

Know your rights … and liabilities

Coming from overseas myself, and living in an international melting pot like Wanaka, one of my hobby horses is educating people that laws can be radically different from one country to the next. I once acted for a gentleman who had cashed in his pension, sold up a valuable home in the United Kingdom, and come to New Zealand to start a fresh life with his Kiwi girlfriend, pouring all of his savings into a wonderful new home. The relationship soured, and he was horrified to discover that when his partner walked out of his life, so did half of his worldly goods. He was even more shocked to learn there were tools and strategies he could have easily implemented during the relationship to better protect his life savings.

If I could choose one soapbox – aside from parents putting children first and foremost during and after separation – it would be encouraging everyone to seek advice around implementing robust asset protection. As demonstrated by my English client, so much heartache, stress and financial loss could be avoided with taking early legal advice. It’s one thing to make an informed decision not to protect yourself, it’s quite another to be oblivious to the fact you even had that option … until it’s way too late.

What’s in your protective toolbox?

Unless you have made a recent, well-advised decision not to, almost every adult needs to at least explore with a family law specialist the following: a will, a contracting out agreement and an enduring power of attorney, which formalises who can act for you, in the event you can’t. Finally, if you haven’t already, you may also need to consider whether you need a trust in which to transfer and protect your assets.

Please ensure, firstly, that anything you put in place is specifically tailored to your particular circumstances, and that all tools and strategies dovetail into, and complement, each other. Secondly, the law is very dynamic in this area, so be sure to discuss with your family lawyer a review schedule to keep your tools and plan relevant and robust. Just by way of one example, it’s not uncommon to see a separated person’s family stunned that, because there’s been no formal divorce, a former spouse is laying dibs to the estate, years after the break-up.

I’ve now specialised in family law for more than 30 years. Such is the nature of human beings, relationships and the laws that surround us, my practice can range from hugely satisfying to harrowing, all in the same day. For all its challenges and inevitable, heart-breaking moments, though, it’s incredibly fulfilling to be able to work every day helping people proactively prevent major problems down the track, and also to provide specialist help, advocacy and support when life delivers its worst.

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