Heather McKinnon Family Law System Interview

Heather McKinnon Family Law System Interview

'While there are issues with the existing family law system, silver bullet solutions such as mandatory pre-nuptial agreements are misguided," Ms McKinnon said.

'The Family Law Act clearly states that the interests of the child should be the highest priority during family breakdown and it would be very difficult, if not impossible, to determine what those needs are before the child was even born.

'Our family law system is dealing with people who are experiencing severe emotional upheaval after their lives took a turn they did not predict. It would be impossible for couples to exactly envisage these circumstances and a pre-nuptial agreement worked out in happier times would likely be of little use.

'Additionally, mandatory pre-nuptial agreements would be difficult to extend to unregistered de facto relationships, which can also impact heavily on children."

How do we fix Australia's family law system?

'The biggest strength of the family law system is that it is structured to assess the specific needs of children in each individual situation," Ms McKinnon said.

'However, the system has been failing this objective in recent times, due to chronic under-resourcing highlighted by many Independent Children's Lawyers.

'Specific policies and initiatives to fix the system must be in consultation with legal, medical and allied health experts, rather than based on political conjecture.

'I would invite all politicians concerned with the future of Australia's family law system to educate themselves on how it works in practice. Visit a capital city family court and watch proceedings.

'Politicians should be talking to senior people in the profession and asking about child support, development and the needs of children during family breakdown, because children must be the first priority in family law reform."

Couples should also be aware that pre-nups are not a silver bullet for preventing or managing relationship breakdown:

Pre-nups can be challenged and overruled: A pre-nup can provide a level of financial security, but it's important to remember that they can be challenged and a court can set them aside.

Circumstances can change: Someone might unexpectedly inherit money or need to stop working due to illness or raise children. What once seemed reasonable may not be viewed that way at the end of relationship.

Independent advice is crucial: Couples should each seek independent advice as there are strict legal requirements about how pre-nups are drawn up.

Interview with Slater and Gordon Family Lawyer Heather McKinnon

Question: What is a 'mandatory pre-nuptial agreement"?

Heather McKinnon: Mandatory pre-nuptial agreements" is a policy idea proposed by the leader of the One Nation party. It is not something that is currently in place. You can read more about it here.


Question: Why do you believe pre-nuptial agreements are misguided?

Heather McKinnon: Pre-nuptial agreements themselves are not misguided, but the belief that mandatory pre-nuptial agreements would -free up the court system' and avoid disputes over financial and parenting issues in the event of relationship breakdown is misguided.

People who break up do not plan on this happening. It is incredibly stressful and the exact circumstances of the break up would be very difficult, if not impossible to predict. A pre-nuptial agreement worked out in happier times would likely be of little use.


Question: How do children affect a family breakdown?

Heather McKinnon: Relationship breakdown is an incredibly difficult experience on its own, but the entire process needs to be re-prioritised when there are children involved. Parenting arrangements need to be worked out and the Family Law Act clearly states that the interests of the child should be the highest priority. The system is structured to assess the specific needs of children in each individual circumstance.

Sadly, I see many children get lost in the vortex of family court litigation, with no voice of their own. When domestic violence, mental illness or abuse is present, forensic psychiatrists are appointed to assess the family situation and ensure the child's safety is not at risk. Without thorough expert evidence, the court has little chance of recognising these situations, putting children at risk of abuse, maltreatment and, in the most extreme circumstances, death.


Question: What do you believe would be a better method than 'mandatory pre-nuptial agreements"?

Heather McKinnon: There are certainly issues with the existing family law system, largely related to under-resourcing. Funding is an issue, but distribution of funding and resources must be determined in consultation with legal, medical and allied health experts, rather than based on political conjecture. Politicians should be talking to senior people in the profession and asking about child support, development and the needs of children during family breakdown, because children must be the first priority in family law reform.

Question: When would a pre-nuptial agreement be required?

Heather McKinnon: A prenuptial agreement, otherwise referred to as a pre-nup, is known as a -binding financial agreement' in Australia. Essentially, it is a contract that sets out how your property and assets will be divided if your relationship breaks down. These agreements can be made before, during or after the relationship - whether it's a marriage or a de facto relationship.

Whether a binding financial agreement is appropriate is up to each individual couple, but circumstances where one might be suitable include when:
One person has much more property than the other when the relationship began
One person is, or may later become, entitled to an inheritance or gift
You are moving into a second or subsequent relationship where children from former relationships might need to be protected financially, or
You both simply want to make sure the terms of any property division are agreed up front and will not end up in court.


Question: How do pre-nuptial agreement works in regards to property and possessions?

Heather McKinnon: When a couple has a binding financial agreement in place, their assets and liabilities are divided according to the terms of the agreement. This means couples can usually settle their divorce or separation outside of court.


Question: If one half of the couple owns their own home and the other was moving in; would this be grounds for a pre-nuptial agreement?

Heather McKinnon: It is up to each individual couple to determine whether a binding financial agreement is appropriate for them. How property will be divided if a couple breaks up is a common concern and could be outlined or protected through a binding financial agreement


Question: How does a pre-nuptial agreement manage a relationship breakdown?
Heather McKinnon: Having a well-drafted binding financial agreement in place can save couples the stress of deciding who gets what if their relationship ends. Some of the common assets and property that people seek to protect include:
cash
real estate
family business
a trust
investments
an entitlement to an inheritance
superannuation
pension entitlement

The idea of property also includes debts and liabilities of the relationship such as an obligation under a business contract.


Question: What are the negatives associated with pre-nuptial agreements?

Heather McKinnon: It is very important that couples realise a binding financial agreement is not an ironclad guarantee that relationship breakdowns will go smoothly.

It is true that such an agreement can provide a level of financial security, but they can also be challenged and a court can set them aside. Additionally, circumstances can change. For instance, someone might unexpectedly inherit money or need to stop working due to illness or to raise children. What once seemed reasonable may not be viewed that way at the end of relationship.


Question: Why is it important to seek independent advice when organising a pre-nuptial agreement?

Heather McKinnon: Independent advice is crucial. Each partner should seek their own independent advice as there are strict legal requirements about how binding financial agreements need to be drawn up. Each person must have a certificate from a lawyer stating that they have received proper advice. If the agreement is not done legally it will not be upheld and they may have to fight things out in court anyway.


Interview by Brooke Hunter