"I don’t want to [pursue any claim to property] because I am scared. I just want to live my life safe and live for my daughter, I don’t want to lose my life for this,” said Claire.

Claire doesn’t have any family in Australia, and she’s concerned that by seeking part of their shared assets she will trigger more violence and abuse from her ex-husband and his family.

“It’s not about money. There is no price,” she said. 

Claire is legally entitled to use the family law system to seek a financial settlement, but she’s trading that away for safety, and she’s not alone.

At Victoria Legal Aid we know family violence victims face a tsunami of legal problems.

Recent research by the Law and Justice Foundation of NSW shows that, on average in one year, victims are faced with a whopping 20 legal problems. For the rest of the population the average is just two. Of this cluster of legal problems, family law problems are the single biggest legal issue faced by victims and are typically the most severe. They include disputes about where children should live and spend time, and financial disputes about dividing debts, possessions and the financial relationship.

In the same study, family law issues are rated the most distressing legal issues by those that experience them because they are completely central to people’s lives.

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The prospect of being forever linked to your ex-partner financially, including any joint debt that they continue to incur in your name and being pursued for that debt while trying to re-establish your household, is horrifying.

The prospect of waiting three years for the family law courts to hear evidence and decide whether the family violence you have outlined occurred or not and what that should mean for where your children live, is unbearable.

That is why we have consistently called for changes to ensure family law judges always make an early decision about whether family violence has occurred when allegations are made.

The reality for most separated couples is that financial or property settlements are simply an informal agreement. For most people this is far preferable to the Court or lawyers getting involved and is the best option for their family. Unfortunately, this is largely not an option for victims of family violence. An abusive ex-partner is often unwilling to negotiate or offer a fair settlement, leaving victims of violence in financial limbo, or worse, continuing to fear for their life.

Often, like Claire, we see a traumatised person just walk away completely, leaving all the possessions and assets with the abuser to risk an experience of poverty from which they may never recover.

Fortunately, there are promising signs that change is already on the way.

In January, legal aid commissions across the country including Victoria Legal Aid, will co-ordinate a new and limited trial of legally assisted mediation for separating couples who have a small amount of property to divide.

This pilot program, funded by the Commonwealth’s Women’s Economic Security Statement, will help give people legal help to fairly and safely reach an agreement about property, quickly and wherever possible without needing to go to court. This pilot is an important first step in making the family law system more accessible, while ensuring safety is prioritised.

In our view the Commonwealth government could take two additional steps.

The family law act should be changed to provide clearer guidance on how separated parties can expect the Court to divide their property. This should include a new section that clearly sets out how the Courts should take family violence into account in property settlements.

And, there should be a Court stream that ensures people have a safe, fair and simple avenue to gain a decision from a judge about how their property will be divided. This is crucial for people who are unable to reach an agreement because of family violence or power imbalance, leaving them in or vulnerable to economic hardship.

There is room for improvement to make the system less complex and less expensive for everyone. To do this the new parliamentary inquiry must consider those who are not currently able to access the family law system at all.

Above all else, this inquiry must have at its forefront the need to make and keep parents and children safe.

*Claire’s name has been changed to protect her safety.

By Emma Smallwood, Victoria Legal Aid acting associate director, family law