They say divorce is worse than death in its stress, grief and devastation. But this life curveball should not also be a financial disaster so deep that it affects lives for years beyond the life event itself.
Family lawyer and domestic violence advocate Joplin Higgins OAM and barrister Dr Darren Mort, co-hosts of the Dear Divorce Diary podcast, warn more Australians are weaponising the legal system to financially, emotionally or psychologically cripple their ex-partners.
They say this rising divorce trend of legal warfare, described as ‘lawfare’, is becoming more prevalent in high-conflict divorces. It uses legal processes to weaken or overwhelm the other party, rather than resolve disputes.
Dr Mort says lawfare is a common tactic but it means different things for different groups.
“For lawyers, lawfare is a rational, tactical choice to achieve an operational objective. Lawyers may differentiate between ‘offensive lawfare’ (manipulating rules to gain advantage) and ‘counter-lawfare’ (defending against the other party’s legal attacks). It is not limited to courtrooms; it includes using the [Family Law] Rules, filing injunctions, or using media to influence public perception, the latter being limited in the Family Court due to strict prohibition of publication laws,” he explains.
“But for families and individuals, lawfare is perceived as a personal, relentless attack designed to inflict harm, often in high-conflict family law disputes.”
The strategy aims to drain the financial and emotional resources of the other party using tactics such as repeated or baseless court applications, excessive document requests, last-minute changes in legal strategy, unnecessary delays or deliberately prolonging negotiations. These approaches can push disputes into lengthy and complex legal battles, exhausting the other party to force them into settling simply because they cannot afford to continue the fight.
“Family law matters are already stressful and expensive,” Dr Mort says. “When someone uses litigation strategically to prolong proceedings, it can place enormous pressure on the other person financially and psychologically.”
In Dr Mort’s experience, primary carers (usually mothers) are most at risk of having legal proceedings filed against them – and often also have been victims of family violence during the relationship. Then they are exposed during proceedings to unrelenting lawfare, also called ‘systems abuse’ or ‘abusive litigation’, which can be part of family violence due to the intention to intimidate, harass or bully the other party.
“Families often see it as a threat to their safety, financial stability or relationship with children,” Dr Mort says.
There are practical steps people can take to protect themselves when dealing with an opponent attempting to weaponise the legal process, including documenting the pattern of behaviour and engaging a lawyer to develop strategies to limit unnecessary escalation while still protecting your position.
The key is to remain disciplined and focused on the outcome rather than reacting emotionally to every move. Consult a psychologist, family members, trusted friends or a divorce coach as your sounding board and to manage the uncertainty, pressure and overwhelm.
And, as much as you’d prefer to avoid thinking about separation, divorce or legal battles altogether, go into proceedings with your eyes wide open as it’s better and necessary to be prepared.
“Don’t use litigation as an opportunity to bag out your ex-partner – use it to advance the best interests of your kids having regard to the relationship history and, more importantly, the road ahead.”
“Your life will be under a microscope for many months. Every action will be accountable. Affidavits will be filed full of perceptions that do not align with your view of the world. You will be criticised, torn apart and taunted by potentially hurtful correspondence from the other lawyer. Your character will be dissected leaving you licking your traumatised wounds,” Dr Mort says.
“You will also experience further polarisation from your ex-partner that will reach chronic levels once you have been cross-examined. Importantly, your children may suffer from your trauma vicariously as well as personally – and after their exposure to lawyers and experts, you may make adverse memories for them that may be indelibly imprinted on their brains.”
Dr Mort says there is too much stress associated with a Court’s discretion to make orders a certain way. So, even after 30 years as a barrister in the field of family law, he advocates trying to find a compromise you can live with to avoid “getting sucked into a vortex of time, money and emotional energy”, which is exactly what lawfare tactics are designed to do.
“I believe a lot of people settle due to attrition, in that they cannot take the litigation route any longer. I consider it is about getting it right rather than being right. If a proposed settlement is in the range, take it,” he says.
“It often takes up to six months to get an interim defended hearing once you file proceedings. In my experience it’s upwards of 18 months for a final hearing and, in some jurisdictions, longer. People also forget that once a trial is heard, a Judge will then reserve his or her decision and that can take up to another six months – or longer in some cases. So, if you can mediate in a range that is in the settlement zone, I recommend taking it every time.”
“The sooner you escape the litigation treadmill the better you will be. It’s your life and don’t waste it by being stuck in expensive gruelling litigation,”
Dr Mort adds. “You will spend significant money and leave the litigation process without much to show for the copious amounts spent.”
