Family Law

How can lawyers consider ‘what’s fair’ in day-to-day practice?

Op Ed - Perpetua Kish, Director at Balance Family Law | Family Law Partner of the Year 2021

How can lawyers consider what’s fair in day-to-day practice2

“𝘐 𝘸𝘢𝘯𝘵 𝘸𝘩𝘢𝘵 𝘵𝘩𝘦 𝘭𝘢𝘸 𝘴𝘢𝘺𝘴 𝘐 𝘢𝘮 𝘦𝘯𝘵𝘪𝘵𝘭𝘦𝘥 𝘵𝘰”

“𝘐 𝘫𝘶𝘴𝘵 𝘸𝘢𝘯𝘵 𝘸𝘩𝘢𝘵 𝘪𝘴 𝘍𝘈𝘐𝘙”.

In reply to a client who might say these things, a family lawyer may ask questions about their personal and financial situation and may then provide an assessment as to what the law considers to be “fair” under the circumstances.


But I have a problem with the concept of fairness in family law.

Fairness can be disproportionately informed by actions of the past and we can become stuck there. Fairness also considers how we may fare in the future, but risks fostering a scarcity mindset in the process.


I have seen how fairness is substituted for kindness. It has replaced compassion. It masquerades as a sensible and more rational approach to the formerly described virtues. It’s more moderate. It’s ostensibly grounded in the commercial facts. Emotions, feelings and matters of the heart, can be challenging to navigate, but “luckily”, they are not considered relevant at law.


When we pursue fairness, the connection between the intention and the result often doesn’t match up. The intention may be noble, but the result doesn’t bring the desired outcomes. Usually one spouse, (and sometimes both) feel a sense of injustice, and peace eludes them.

Because pursuing absolute fairness, while theoretically possible, is practically impossible. Humans are multifaceted, feeling beings. The law is a system designed to regulate, systemise and control. Systems and rules are not generally fluid. Feelings and the human condition are. In family law, the concept of fairness might be a wolf in sheep’s clothing: a simple, benevolent concept it is not.


The legal concept of fairness may be flawed but it can be improved by redefining or at least expanding how we think about it:


  • Fairness should prompt us to acknowledge that one spouse is as much as entitled to be heard, as the other.
  • Fairness is owning your part and sharing the blame.
  • Fairness recognises that both parties need to contribute to creating a solution.
  • Fairness is taking a step back and considering the problem holistically and considering how both sides are affected, instead of zooming in on aspects that are self-serving.

Alongside our family law’s concept of fairness, shouldn’t we balance understanding, forgiveness, accountability and kindness? The objective should be to obtain outcomes on the basis of entitlements and what one is deemed to deserve; but to reflect on what both parties actually 𝘯𝘦𝘦𝘥.


Sounds fair to me ☺️


Four ways to respond when your client says, ‘it’s not fair!’ according to Perpetua Kish

1. Hear them out:

It’s very easy to become stuck when there is a feeling of injustice. Work with clients to unpack what fair means to them. What do they feel they will lose? What are they fearful of? Now is not the time to offer solutions – be present, listen and learn. Feeling heard, is a precursor to healing.

2. Facilitate reframing:

While the focus might be what can be lost, but what about what can be gained?

Looking through the lens of possibilities, more options might become apparent. Work with them to identify as many options as possible, to put forward as a potential solution.

It can be challenging, and even exasperating when clients become very fixed and unable to see the other person’s POV. Remember, putting themselves in the shoes of the other party to the dispute, is something some clients might not yet be ready for when emotions are raw. Occasionally, we may place too much emphasis on trying to get parties in conflict, to understand each other, and when we do so, we risk letting this lack of readiness create a barrier to settlement.

There is a precursor to understanding: in order to understand another's views goals and feelings (and for them to understand yours) you first need to acknowledge what is theirs, and what is yours. You have your own needs, values and beliefs, and so do they. You have your own goals and wishes, and so do they. When we know what we own, and what we can control - we feel safe. From this safe place, clients may feel less uncomfortable and more willing to take responsibility, better able to have more purposeful conversations, articulate their needs, and talk about what has upset them.

3. Don’t take the client’s problem:

It may feel like we're helping clients when we attempt to placate them by promising to fight for what they consider fair. We should be careful about professing to take a client’s problem, it may not be our client’s fault, but it is their problem. It starts with them and ends with them. Lawyers should work alongside their clients to help them acknowledge their role in the dispute, problem solve and be part of their own solution.

4. Be kind:

Our clients are often under a tremendous amount of stress. There are small things we can do, to remind them that there is goodness in the world, and lawyers aren’t all bad!

Patience, tolerance and being available to hear their concerns is paramount. We should take steps to do everything we reasonably can to make sure our clients feel listened to, respected, and valued. How we work with them during challenging times can make all the difference to their overall experience and perception of fairness of our legal systems.


Perpetua Kish is an alumna of the College of Law’s National Mediation program.

This story was originally published as a LinkedIn post and has been adapted for The College of Law.