Does divorce always end in court?

When couples separate, the first question they are likely to ask is whether they need to go to Court in order to get a divorce. The simple answer to this is “no”. Whilst a Divorce Application must be filed with the Court to initiate the divorce process, this does not necessarily mean that a person must physically appear before the Court. The only time that an applicant will be required to be present at Court is when there are children below the age of eighteen (18) years.

The rationale behind this is that the Court, in considering whether or not to grant a divorce, must ensure that there are suitable arrangements in place for the children of the marriage. This does not particularly require parents to have a formal parenting plan or parenting orders in place. So long as the Court has sufficient evidence before it detailing the existing care arrangements for the children, it is less likely to question the parties with respect to parenting arrangements. The Court is well aware that circumstances change and the living conditions for children may vary with age, changes in residence, children’s growing needs and schooling commitments. The Court’s primary consideration is to ensure that any existing or proposed parenting arrangements meet the best interests of the children.

Very often, people engaged in parenting or property proceedings are under the misconception that a divorce will not be granted until those proceedings have been resolved. This is not true. Hearings dealing with the dissolution of the marriage (divorce) are separate to parenting or property proceedings. The Court will grant a Divorce Order even if the parties are involved in ongoing litigation.

As far as the law is concerned, the Family Law Act 1975 founded the principle of no-fault divorce in Australian law. This means that a Court is not interested in the marriage ending. The only ground for divorce is that the marriage has broken down irretrievably. That is, there is no reasonable likelihood that the parties will reconcile and get back together. As a pre-requisite, parties must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.
To apply for a divorce, you are required to complete an Application for Divorce and file it with the Family Court and pay an Application fee which is currently $845. If you wish to obtain more information on the process of applying for a divorce, we invite you to contact our office to speak to one of our experienced practitioners who will be able to assist you with your enquiries and canvass any issues in your personal circumstances.

The importance of documenting family financial arrangements

Clients regularly seek our advice regarding money given to family members or friends. Often, the gift happened many years ago and relationships may have deteriorated somewhat in that time. In our experience, the arrangements are rarely documented.

When money is “given” to another, it can be for many different reasons, including:

  • as a gift
  • as a loan
  • to purchase something.

The Common Law provides that a financial transaction between family members is regarded as a “gift” unless there is proof to the contrary, for example, by the existence of a loan agreement. While verbal evidence of such an agreement is permitted at Court, it is very difficult to prove what was said many years before at the time of the transfer of money and what the terms of the deal were to be.

If the money was given as a loan, it should be properly recorded in writing and should be signed and dated by both parties. It should clearly state that the money is to be regarded as a loan and the agreement should also record things such as the repayment plan and any interest being charged. It is simple and inexpensive to have this done properly but saves considerable argument if the parties later disagree. It reminds the parties of what the agreement was and takes doubt out of the equation.

If the money was to be used to purchase something such as a property, this must also be documented. In addition, stamp duty is to be paid and a Transfer should be registered with the government. The law states that any dealings which deal with real estate must be in writing in order to be enforceable.

You should obtain legal advice from an experienced solicitor to ensure such transactions are properly documented. The savings in money, time and stress will be immeasurable if something goes wrong in the future.

Collaborative law – resolving disputes respectfully

Collaborative Practice explained

Collaborative Practice is a fresh approach to resolving disputes without going to court. It helps separating and divorcing couples resolve your differences respectfully and in private.

The essence of Collaborative Practice is that both you and your spouse/partner focus on the future and the needs of the family unit. This helps ensure that the process is focussed on the future needs of your family and you have the peace of mind that your dispute will not go to court.

Collaborative Practice allows you to create a future that meets your unique needs and involves you consulting with inter disciplinary collaborative practitioners such as Family Dispute Resolution Practitioners and Mediators, Financial Specialists, and Parenting Specialists who all work together to help you negotiate a workable outcome that best suits your needs.

Dispute Resolution Practitioners and Mediators, Financial Specialists, and Parenting Specialists who all work together to help you negotiate a workable outcome that best suits your needs.

By its nature, it avoids the need for lengthy and expensive affidavits and other court documents to be prepared. Time frames are determined by the parties not by court lists and timetables.

Each party agrees to make and honest and open disclosure of all documents and information. This method of resolving a dispute invites parties to act respectfully towards each other.

The process

All negotiations are conducted in four-way meetings attended by the solicitors and the parties themselves. The Collaborative process follows the following steps:

  • identify what is important to each client (interests);
  • identify what questions the clients need to answer;
  • gather information;
  • create the maximum number of choices;
  • evaluate options and modify and refine them;
  • negotiate to an acceptable agreement; and
  • closure.

Collaborative Practice offers the prospect of a solution for your long term benefit that is cost-effective, flexible, confidential and non-adversarial.

What is collaborative law in family law?

Collaborative law is an effective process which allows separated couples to achieve a respectful and balanced outcome for parenting arrangements and financial matters. The collaborative process is fundamentally different to the traditional adversarial (Court based) process.

The collaborative process allows couples to explore issues which are important to each of them and to take responsibility for finding solutions. Each person is represented by their own lawyer and the couples, with their lawyers, engage in a series of meetings throughout the process, during which everyone works together to achieve acceptable outcomes.
Where necessary other collaborative practitioners are introduced to assist the couple to find solutions and work through the process. Such practitioners include financial advisors, accountants and psychologists.

The International Academy of Collaborative Professionals has prepared a useful table which sets out some of the key differences between the Collaborative Process and the traditional Court process (litigation). Click here to view the table.

If you would more information about the collaborative law process please contact a Best Practice Lawyer.