Most relationship breakdowns are difficult and are often characterised by high emotions, and severe anxiety.
In most separations there is usually one reluctant party, who doesn’t want the relationship to end, let alone divide up their assets.
Why people refuse to negotiate
There are a number of reasons why some parties refuse to negotiate, but generally they fall into three categories:
- Those who are emotionally affected by the separation.
- Those who are angered by the separation.
- Both of the above
Emotional response to the breakdown of a relationship
It is our experience that some people simply “shut down” when a relationship ends. They can’t or don’t want to face the end of the relationship, nor can they bring themselves to discuss financial and/or parenting matters with the other party.
These people have a very real sense of loss and find it difficult to concentrate on moving the matter forward. This is often more difficult in lengthy relationships.
The angry or spiteful response to the breakdown of a relationship
It is also our experience that some parties simply refuse to negotiate out of spite or anger.
In some family law matters a party may feel both a sense of loss, and a feeling of anger after the breakdown of their relationship.
Options for when somebody is refusing to negotiate
Working out the reasons why somebody is refusing to negotiate is important when navigating the negotiation process, and to developing the right strategy to obtain a resolution.
If there is a suggestion that one party simply cannot face the process, it may be more appropriate to take a conciliatory approach to the negotiations. In these cases, it may be appropriate for us to write to the party and suggest some more user-friendly methods of resolution which may include:
- A round table conference, where the parties and their lawyers meet at a neutral location to discuss proposals regarding a property settlement.
- It may be appropriate to suggest that the parties attend for mediation at a non-legal mediation service like Relationships Australia, where the parties negotiate without lawyers. Such mediations can be done by way of “shuttle conference” where the parties are in separate rooms.
- Using the Collaborative Law process, where the parties work together with their solicitors to obtain a fair and reasonable property settlement. The Collaborative process seeks to eliminate the Court as an option.
- Making a property settlement proposal to resolve the matter that would suit both parties.
It is also important in these types of cases that letters from solicitors remain constructive, and that they don’t contain inflammatory language.
In the event that a party is refusing to negotiate purely out of anger and/or spite then there may be no other option but to proceed to Court. That means making an Application to the Court and asking the Court to order a specific property settlement. This is often a costly and time-consuming process. Further it means that a third-party (the Judge) can decide your property settlement, taking the control of the matter out of yours and your partner’s hands. This is not always advisable.
Recent changes to the Family Law legislation now require that both parties are required to make a genuine attempt to resolve their property settlement matters before they proceed to Court. These are referred to as the Pre-Action Procedures. (These Procedures do not apply in matters where there is urgency, or family violence)
The Pre-Action Procedures (meaning the steps you need to take before you file an Application with the Court) require the parties to use their best endeavours to exchange financial information, and to use every effort to come to an agreement regarding property matters.
It is important, when one party refuses to negotiate a property settlement, that they be reminded of the Pre-Action Procedures, and the specific obligations these Procedures place on each party.
Unfortunately, some matters do need to proceed to Court, but thankfully these matters make up a small percentage of the overall family law disputes.
This article is intended as general information only Please contact us online or contact our Family Law Team at Tonkin Legal Group on (03) 9435 9044.
