By Kristy Nunn and Felicity Wardhaugh -
Snapshot
- Protect yourself against a client’s anger towards their ex-partner – it can lead to the client looking for someone to blame and a subsequent negligence claim against you.
- In cases involving property adjustment between de facto or married couples where one party is the sole proprietor of real estate, make sure the client is aware of the risk of their ex-partner further encumbering the property.
- Outline the options open to the client in writing and monitor the situation regularly so you can adjust the strategy if necessary.
It can be a very difficult, costly and frustrating exercise assisting a client to seek orders for the adjustment of property where significant assets such as real estate (‘property’) is owned solely by a former spouse or de facto partner. There are no easy answers to the fear that during the time it will take to settle the matter or obtain orders from the Family Court or the Federal Circuit Court, the ex-partner will take the opportunity to reduce the value of the property. A significant risk exists if the property has been used as security for a loan or line of credit. Your client has no legal right to communicate with the lender about the loan and no easy prospects of persuading the lender not to advance more funds to the ex-partner.
A solicitor needs to be careful to manage the client’s expectations as to how best to address this fear. The likelihood of the fear becoming a reality has to be weighed against the cost of taking legal action. It is important to ensure the issue is recognised and discussed with the client to avoid the client later trying to blame the solicitor if the property is devalued.
