
If you are going through the process of separation, your aim at the outset should be to end up in the 95% of Australians who settle out of court.
I mean by really staying out of court, and not by being one of the many couples who are counted as 'settling out of court' but actually wasted months of stress and thousands of dollars in the Family Court System, before finally deciding to settle on Consent Orders they could have reached months and thousands of dollars earlier.
How do you reach an agreement out of court?
Get organised, get informed and and be prepared to compromise.
Property settlement, whilst an anxious time for most couples, shouldn't be an overly emotional decision.
Don't let your emotions overrule your intellect.
Don't pay professionals to do basic admin for you.
Divorce Resource can help you to understand the Family Law System in Australia, the 4-Step Process for determining property settlements and collate all the data you need for property settlement and divorce.
To reach a final agreement without litigation, both of you will need to compromise, practice patience, communicate effectively, and engage in negotiation and mediation.
First Steps
Speak with your ex-partner to establish some general undertakings as to how you will move forward;
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where each of you will live,
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how will financial commitments be met (short term and longer term)
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how you will maintain care and support and parenting relationships with your children
These discussions are not easy, especially during the heightened emotions following separation. Most people benefit from a third-party facilitator. Please reach out to me at christine@divorceresource.com.au. I offer consultations via ZoomMeeting and can often accommodate appointments around your work and family commitments.
Interim Measures
In addition to collecting information about all of your assets, liabilities, household items, and superannuation, you should work out your incomes and living expenses going forward. You will need this information to ensure that step 3 of the 4-step process is considered.
Often, it is not feasible to reach a final agreement shortly after separation. It is advisable to agree on interim measures to ensure that neither party is left without funds to support reasonable living expenses and accommodation and that any children maintain meaningful relationships with each parent and extended family.
This might mean, for example, agreeing that salaries will be paid to your personal bank account, with funds transferred to a joint account to cover living costs, mortgage repayments, etc., and scheduling time for children to spend with each parent. While these agreements are not legally binding, they will help to establish good rapport going forward. The contributions to parenting and financially supporting the family after separation are certainly considered by the Court.
If you are in the unfortunate position of experiencing domestic violence, you should fully document your circumstances. Maintain an ongoing record of any incidents.
Working towards final settlement?
You can work with your former partner or by yourself to collate the information required to start negotiations. If you can’t manage to negotiate to a resolution without facilitation, you will still need to give your mediator, family lawyer or other expert an instant snapshot of all the data relevant to your circumstances. So, prepare as much as you can without assistance from your ex-partner. Professional advisers cannot offer advice specific to your situation without this information.
Paying experts their hourly professional rate to guide you through the discovery process is pointless. Working with Divorce Resource may save you hundreds, if not thousands, of dollars to use later if still necessary to pay for expert opinion and not admin. Or, better still, to leave it in the pot to split between you and your former partner.
What should you know before you start?
One of the most important points you need to wrap your head around is that Australia has a 'no-fault' divorce philosophy.
What that means is that the court is typically not interested in why your relationship broke down, and in almost every instance, you will not be compensated in a property settlement for the bad behaviour of your former partner.
If your partner had an affair, was lazy, undermined your self-confidence and even if they were moderately abusive, in almost all instances, the court does not care. Learn what is relevant in family law and what the court would consider when ruling on your matter. Then, aim to reach a result that is within the range of the court guidelines and works as well as it can for each of you.
Please don't waste your time and your money trying to prove you have been wronged and should, therefore, get a larger share of the property split.
So often, what feels like it should be relevant, just isn't in law.
If you can come to terms with this, you will bring yourself so much closer to dissolving the practical aspects of your relationship, recovering, and moving on to a happier you.
I strongly urge you to seek counselling to help you process and accept your new realities to engage in negotiations with a clearer headspace.
In Australia, the court will apply the Four-Step-Process to determine a property settlement. If you are reaching an agreement that you will subsequently lodge with the court as Consent Orders, the court will look at your agreement to make sure it complies with what is considered fair and just before sealing the orders, so it is important that you understand and take these principles into account before you lodging your agreement. There are various types of legally binding agreements, but most people who can reach self-determined agreements opt for lodging an Application for Consent Orders.
Read more:
What is a property Settlement?
What is included as property to be split?
All You Need to Know About Private Parenting Plans
The good the bad and the ugly of my day in Family Court
Contributions made after separation: Why quick settlements can be vital
Published by Christine Weston, Founding Director - Divorce Resource