Family law litigation is the process of handling disputes between two parties going through divorce and the issues that can sometimes come with divorce itself. These types of legal proceedings in the context of relationship breakdowns and divorces often leads to emotions which are highly fraught and parties who are extremely vulnerable. It is commonly referred to as aggressive, however it can assist to speed up and close out negotiations that have been stalled or dragged out.

It follows an adversarial trial system used in the Australia justice system whereby two parties oppose each other in Court. They both seek the same outcome – to win the case. The judge decides the outcome of this case and the decision is legally enforceable.

While not every issue between a recently divorced couple needs to be litigated, there are matters that commonly have the need for a more aggressive approach of resolution. These matters might include:

  • Custody and parenting time
  • Relocation of children
  • Business valuation as it related to equitable distribution
  • Retirement as it impacts alimony
  • Cohabitation as it impacts alimony
  • College contribution
  • Child support in excess income cases

It is quite common that many divorce cases will include some form of litigation, except for when parties decide to undergo mediation or enter into a collaborative agreement with one another.

It’s also useful to highlight that family law litigation can also include post-divorce disputes as well as de facto relationship disputes.

Why do people litigate?

There are many reasons people going through divorce would choose to undertake litigation. Some of these reasons could include:

  • Assists to resolve matters requiring an urgent action – for example, requiring an injunction to restrain a person, whether that is to deal with an asset or prevent them from travelling abroad with a child.
  • Allows the parties to come to a resolution that is in the best interests of the children involved.
  • A range of outcomes could be achieved based on precedents and evidence. This could provide one of the disputing parties with some hope to achieve a better resolution if it determined by the Court.
  • There is the ability to appeal the decision made by the Court if there have bene errors made.
  • The final outcome of this is a legally enforceable document which can help to close out negotiations for good. If the other party does not comply with the agreed outcome, serious consequences can follow. 

What are the disadvantages of litigation?

As explained earlier, litigation is usually a last resort for many separating couples as it’s confronting, but also comes with a number of pitfalls. These include:

  • There is no certainty of the outcome for parties involved in litigation. While lawyers can guide you on the different options and the likelihood of those options available to you, the Judge will make the ultimate decision around what order and directions need to be followed based on the individual situation, the evidence presented and precents cases. A litigation will always be lost by one party and the outcome will not work in their favour. 
  • Litigation is an incredibly time consuming and exhausting process – emotionally and physically. Right from filing applications with the court, to commencing the proceedings – it can take months – sometimes years – to reach a final determination. This can make it quite stressful for individuals who are financially dependent on the other party while a final decision is made by the courts on how assets will be split and issues resolved.
  • There is a reasonable cost involved with undertaking litigation as a result of the Court documents, legal representation and advice, and Court expenses. This can very quickly add up to be a significant expense.
  • It can be an emotional rollercoaster having to continually deal with the conflict from a former partner, hearing allegations, and ongoing disputes. This is why litigation is often seen as a last resort and quite an aggressive form of dispute resolution; it is destructive to relationships and can be hurtful to individuals who are impacted by this emotional process. This is particularly serious when it relates to parenting matters and children are involved. 

More information

Litigation may be essential to receive a process that some couples simply need to pursue and it may not be avoidable. Whether it is in the best interests of the children or for a financial matter, litigation is about provide a fair and equitable result for the parties involved.

A lawyer’s role in these types of cases is to empower and support their client through these difficult negotiations. Our team of highly qualified lawyers are experts in Family Law and have decades of experience to support and advise you on your particular situation. Get in touch with our team today to learn more about what’s possible and the best way forward.