Why should you opt for amicable divorce settlements? Divorce is a significant personal decision for both parties in the relationship. That’s why choosing to settle divorce issues amicably is the right path for you, your former partner, and your children.
Amicable settlements prioritise collaboration and compromise. This paves the way for less conflict and negativity such as heated arguments and emotional toll that may arise in court proceedings. Moreover, it minimises the emotional toll on both partners, especially when children are involved.
Amicable Divorce Settlements
An amicable divorce settlement in Australia refers to a dissolution of marriage where both parties mutually agree to end their marital relationship and work together to reach a favourable outcome for both parties.
Amicable divorce settlements are centered around:
- open communication,
- mutual respect, and
- shared decision-making,
encouraging couples to resolve their differences through negotiation and compromise rather than litigation. Basically, the primary goal is to reach a fair and equitable settlement that takes into account the needs of both parties, particularly when children are involved.
What Happens During Amicable Divorce Settlements?
During amicable divorce settlements, the divorcing couple aims to reach a mutually beneficial solution that considers the needs and interests of both parties, especially when children are involved. The entire process typically involves the following steps:
- Negotiation and Compromise. Couples are encouraged to negotiate and be prepared to compromise to reach a fair settlement that is in the best interests of all involved.
- Formalising the Agreement. Once an agreement is reached, it is necessary to formalise it legally. This can be done with the assistance of collaborative lawyers or mediators who will help in drafting the required documentation.
- Prioritising Children’s Interests. Amicable divorce aligns with the principles of family law in Australia, which prioritise the best interests of the child. The Family Law Act 1975 encourages parents to resolve disputes through non-adversarial methods, such as divorce mediation, with the aim of preserving the child’s relationships with both parents.
Amicable Divorce Settlements: Parenting Arrangements
Parenting arrangements in Australia refer to the arrangements made for the care of children after separation or divorce. The Family Law Act 1975 prioritises the best interests of the child when making decisions about children and encourages parents to resolve disputes through non-adversarial methods, such as divorce mediation.
Parents can make a parenting agreement or obtain ‘consent orders’ for parenting orders approved by a court. The Parenting Orders Handbook provides advice to parents about how to make a parenting agreement, and what to do if they cannot agree on parenting arrangements.
Additionally, the most common parenting arrangements in Australia include shared care, alternating weeks with a visit in between, alternate weekends, and four/five/six days with one parent and the remaining days with the other parent.
In cases where parents cannot agree on parenting arrangements, they may need a parenting order from a family court. Parents may also make an agreement between them, but want it to put into formal court orders ‘consent orders’.
In creating these arrangements, the best interests of the children are highly considered. Here’s what is generally considered when working out parenting arrangements:
- the children’s ages
- who is best placed to provide day-to-day care for children
- any special needs e.g. medical and schooling practical considerations e.g. housing, transport, unexpected expenses
- the cultural needs of the children, especially if they are Aboriginal or Torres Strait Islander
- the opinions and choices of the children
- the safety of the children
Amicable Divorce Settlements: Money and Property
The division of assets and property is one of the aspects that must be settled properly during the divorce process. The law requires the court to make orders that are just and equitable in all circumstances. However, the exact terms of a divorce settlement vary depending on the specific circumstances.
The guiding principle is to achieve just and equitable outcomes, considering various factors such as:
- Financial contributions – The financial contributions of each spouse to the acquisition, improvement, and maintenance of the assets during the marriage and after separation.
- Non-financial contributions – Contributions such as homemaking, child-rearing, and emotional support can also be considered.
- Future needs and circumstances – The future financial needs and circumstances of each spouse are taken into account, including income, health, and potential for earning capacity.
- Welfare of children – If children are involved, their needs and best interests are a paramount consideration.
However, there is no strict formula for an amicable property settlement. Note that the division of assets in a divorce is not necessarily a 50/50 split, and the outcome of a property settlement will depend on the practical circumstances, with judicial determination being discretionary.
Upon reaching an agreement, the agreed-upon terms are documented in a legally binding document like a Financial Agreement with Binding Effect or Consent Orders. If an agreement is not reached, the court will determine the division of assets through a judicial hearing.
Types of Assets and Property
The scope of assets and property subject to division is broad and covers everything jointly or individually owned during the marriage and after separation. This is a list of the assets that you need to divide:
- Real estate – Family home, investment properties, vacation homes.
- Financial assets – Bank accounts, investments, shares, superannuation.
- Personal assets – Vehicles, jewelry, artwork, furniture.
- Debts – Mortgages, car loans, credit card debt.
Options For Dividing Assets
There are three ways for dividing assets during amicable separation and divorce settlements:
- Property agreement – For this type, you should agree between yourselves. These agreements are not legally binding (enforceable) but if you both stick with what you have agreed, they will be effective.
- Application for orders – As mentioned earlier, this one allows you to agree on what you want to do and ask the Court to make Orders about what you have agreed. Note that the agreement needs to be fair for the Court to make the Orders. Once the Court makes Orders, they are binding.
- Financial orders – If you can’t agree between yourselves, you can apply to the Court to make orders for you. The Court can then decide how your money and property should be divided to achieve a fair division.
Secure Your Future and Receive Independent Legal advice
Facing divorce isn’t about finding the cheapest solution, it’s about finding the right family lawyers to protect your future. Make the smart choice. Invest in your well-being and let a qualified family lawyer from JB Solicitors be your guide through this challenging time.
Visit our website to learn more about family law matters and how our divorce lawyers can fight for your best interests as well as your children’s. Contact us today and seek legal advice about divorce.