Separation in the age of the internet

We undoubtedly live in a digital age. We bank on-line, we shop on-line and we gamble on-line. Email and text message are prominent forms of communication. We download music, movies and television. We read blogs and we write blogs. And we socialise on-line.

Around the world over 800,000,000 people actively use Facebook – over 55% of the Australian population has a Facebook profile. Twitter has over 500,000,000 registered users generating over 340 million tweets daily. We don’t just socialise on-line … we love to socialise on-line.

With so many people sharing so much on sites like Facebook and Twitter it can be easy to forget that these sites are not private – they are in the public domain. You may be able to control your privacy settings but by their very nature you are sharing information with many other people and that information can passed on and shared beyond your control.

In increasing number the internet, and in particular social networking sites like Facebook and Twitter, are implicated in the breakdown of marriages and relationships.

A UK study indicated that one-third of divorce cases in England implicated Facebook – the 5,000 people polled cited three grounds: inappropriate messages sent to the opposite sex prior to separation, friends disclosing a spouse’s behavior (either prior to or after separation), and negative comments about each other posted after separation. And once litigation starts social media continues to play a paramount role to bolster claims of financial irresponsibility and parental deficits. A study by the American Academy of Matrimonial Lawyers found that in the past 5 years 80% of divorce matters included social media posts, mostly from Facebook.

So is there a way to combine family law and social networking?

Before you post anything ask yourself “How would I feel receiving this message?”

Avoid negative comments. Avoid sarcasm. Avoid personal remarks. Avoid threats.

And while we are on things to avoid ... family law is an intensely private and personal matter so maybe ask yourself if your comments should be put on social media at all – instead would it be better, if it really needs to be said, to instead email or text? If the other party has said something on social media, think carefully about whether you need to respond and whether that response would be better sent to them privately (text or email) and if you feel you need to defend your character to others – not everyone in their contacts list, just the people who matter to you - whether you could do that in private messages to them.

Do you mean 'I do' or 'I sue'

In the world of pop culture ‘pre-nups’ are common – George Clooney was in a movie about one, Charlotte negotiated one in Sex and the City, and everyone from royalty to Kim Kardashian apparently has one.  Kayne West even wrote a song about them with the catchy shout out “holla, we want pre-nup: ‘We want pre-nup.’” But in Australia pre-nuptial agreements (known as Pre Binding Financial Agreements) are far less common and, increasingly, their continued use is far from certain.

The Family Law Act 1975 allows parties to enter into an Agreement before they get married, or commence a de facto relationship, which addresses how, in the event of the breakdown of the marriage or relationship, all or any of the property or resources of the parties is to be dealt with.  It sounds relatively simple but the problem lies in the requirements set out in the Family Law Act for the Agreements to be executed. Essentially, the Act requires each party to have received ‘independent legal advice’ prior to entering into the Agreement on the effect of the Agreement on their rights and entitlements and the advantages and disadvantages at the time that the advice was provided to that party of making the Agreement.

In a 2008 case the Family Court set aside an Agreement – which the husband did not want to comply with following separation – on the basis that the Family Law Act requirements (slightly different to the current legislation) had not been strictly complied with. This decision gave way to a rash of litigation with many other people wishing to avoid their obligations on the basis that their lawyers had not complied with the requirements meticulously. The Federal government responded by relaxing the requirements in the Family Law Act slightly in an apparent attempt to ensure that people could still enter into such Agreements even if there were inadvertent or minor technical errors. However, varying the requirements was something of a high-wire act for the government and many believe that they still have not got it right. Indeed there are currently two cases making headlines on this issue.

The first has been dubbed, in the media, “the pole dancer case”. In this case the husband met the wife at a Sydney club around the time he separated from his first wife in the late 90s and they married some time later in 2005. They entered into an Agreement before marrying which provided for the wife to receive $3.25 million if their marriage broke down in four years. It ended within two. The husband, who apparently has a net worth of around $16 million, claims that the wife acted fraudulently when she said she wanted to spend the rest of her life with him and have children with him. However, he’s also relying on an allegation that his solicitor did not give him the necessary independent legal advice. In 2011 the Family Court determined that the Agreement stood. The husband is currently appealing that decision.

The second case involves Olympian Grant Hackett. While his apparent outburst was splashed across front pages everywhere increasingly it is litigation against his former solicitor that is making the news. It’s been reported that the swimmer is suing the solicitor who drafted the Agreement he and his former wife signed less than a month before they married in 2007 alleging that the Agreement did not comply with the requirements when signed and that the lawyer did not rectify the situation when the Agreement was varied some two years later.

As a result of cases just like these two headline grabbing examples there is a considerable amount of legal uncertainty surrounding Pre Binding Financial Agreements. The Family Law Council of Australia has written to the Federal government on a number of occasions urging it to amend the Family Law Act to clarify the requirements for independent legal advice – especially how to show that the solicitor provided the advice, that it was received by the client, and that the client understood it. The Family Law Council notes that lawyers are increasingly reluctant to prepare these pre relationship or marriage Agreements due to the growing uncertainty regarding the requirements.

NB: Pre Binding Financial Agreement are distinct from Binding Financial Agreements entered into after separation has occurred.

Introduction

I am a solicitor at Tranter Lawyers in Maitland, New South Wales - practicing exclusively in family law  for over seven years now.

I have had matters in all areas of family law, including: pre nuptial and/or cohabitation agreements, divorce and separation, married and de facto (including gay and lesbian relationships) property settlement, parenting and children's disputes, international relocation, domestic violence, binding financial agreements, adult and child maintenance, child support, adoption and child protection matters.

In 2012 I  recevied a Masters in Family Law from the College of Law following three years of study.

I volunteer as the family law solicitor at the University of Newcastle Community Legal Centre once a month and am currently on the Board for the Hunter Region Business Enterprise Centre . In the past I have been on the Management Committee of PULSE, a charity raising funds for HMRI as well as being the Junior Vice-President of the Newcastle Law Society.

The content on this site does not consitute legal advice and is for general information only. Readers must place no reliance whatsoever on the content of this site. The author, and Tranter Lawyers, accept no liability whatsoever arising as a result of reliance upon its content. If you require further informaiton please contact me at Tranter Lawyers via our family law website http://www.familylawinfo.com.au/