While some couples want much more than they can receive in a property settlement, others want an amicable divorce in Australia. An amicable divorce means everyone gets what they want and each party gets a fair and equitable share or arrangement.
No, it does not mean each party gets a 50/50 share. Sometimes, it’s 60/40 or maybe even 80/20 and is actually fair under legal standards. However, such outcomes are unacceptable to most parties to a divorce. Almost any party in a divorce wants to have more or reiterate their rights on certain assets or child custody.
It is a legal battle of two disagreeing spouses associated with conflict and bitterness. Indeed, divorce cases make egos and resentment grow rapidly. However, not all divorces end up in bigger disputes. Just like separation, married couples who will divorce can still have closure and agree on asset, property, and parenting arrangements.
Couples who have just gone through a divorce deserve peace of mind and a chance to start anew after closing the chapter of a failed marriage. So, every couple deserves an amicable divorce in Australia?
What Is an Amicable Divorce in Australia?
An amicable divorce essentially means a fair divorce where both parties are content with how their divorce turned out. Ex-couples can achieve a fair divorce during mediation. Usually, in this procedure, a family lawyer will act as a third party to facilitate the divorce settlement or separation process. The family lawyer or mediator will:
- Listen to both parties’ sides and points of view
- Help create a calm atmosphere for the conflicted couple
- Suggest steps or options that the couple can agree on
An amicable divorce in Australia is centred around open communication, mutual respect, and shared decision-making. It outlines the terms and conditions of the divorce, including property division and child custody arrangements.
The primary goal of mediation is to reach a fair and equitable settlement that considers the needs and interests of both parties (if there are no children involved). However, marriages with children are another story. Most divorces that have children often involve disputes about child custody arrangements.
So, Why Do Some Divorces Not End in a 50/50 Split?
A lot of factors can affect this. During a mediation session, ex-couples can freely express themselves to the mediator. No court dates, judges, or lawyers. They can explain what they want from the divorce and why they want that arrangement.
There will be selfish ones that demand so much but contribute so little in the relationship and in their home’s upkeep. On the other hand, there will be people who will want more because they gave their all in the relationship.
Whatever the result is, the mediator will ensure that it is fair and equitable. Most of the time, the partner who has contributed a lot will receive a favourable settlement outcome. If we always settle divorce cases with a 50/50 split, it would be unfair for partners who have made substantial contributions in their relationship.
That’s why mediation and collaborative law are integral components of amicable divorce in Australia. These processes provide structured frameworks for couples to engage in constructive dialogue. Mediators and collaborative lawyers usually facilitate mediation sessions. The mediator does not make decisions but helps guide discussions and explore potential solutions.
Collaborative law, on the other hand, involves each spouse retaining a collaborative lawyer who advises them throughout the negotiation process. Both parties and their lawyers commit to resolving the issues without resorting to litigation.
What Should You Remember About the Divorce Process?
The divorce process involves steps and the filing of necessary documentation to help you dissolve your marriage. The Federal Circuit and Family Court of Australia deals with the dissolution of marriage under Part VI of the Family Law Act 1975. If you want to get started, you should remember that:
- You can eFile your divorce application using the Commonwealth Courts Portal.
- You may apply for a sole or joint application divorce form. You might need to upload another application if you cannot locate your spouse to serve the divorce papers. This applies to applicants who filed a sole application.
- Both you and your spouse are separated for 12 months and 1 day or longer before filing for divorce. If you have been married for less than two years, you will need to file a counselling certificate.
- Either you or your lawyer can prepare your divorce application
- You may not attend court if there are no children in the marriage
- You will need your marriage certificate if you were married in Australia
- Every application for divorce is different. Hence, the court may ask you to file further documents depending on your circumstances.
- The Family Law Act 1975 states that couples should use consent orders as they are essential to resolve disputes in family law matters. These are legally binding documents that prevent parties from changing their minds independently later on.
- Once the court grants your divorce, it will be finalised one month and one day later unless the Court makes a special order.
Tips for Partners Who Want an Amicable Divorce in Australia
Now, couples cannot simply achieve an amicable divorce if they do not consider the interests or opinions of their ex. Yes, we understand that most couples want to finish their divorce right away. Who wants lengthy dramas and long crying sessions during divorce, right?
All couples will eventually go through these if they want an amicable divorce. It’s the hard part of a divorce, and we encourage you to read the tips below to reach a fair divorce with your ex.
1. Every Separating Couple Goes Through Divorce Differently
Couples who separate end up in distress and a state of emotional wreck. One party may be able to move on just fine, or can process their feelings properly. However, this does not always apply to the other party. Almost always, there will be a partner who will process the divorce or separation longer than the other.
How can an ex-couple reach an amicable divorce in Australia if they aren’t in the right headspace for the incoming legal matters? Both parties should consider this, so they shouldn’t rush their ex-partner to opt for legal proceedings right away. Instead, both parties should opt for counselling or any other form of support to help them process their feelings and decisions.
2. Prepare Yourself To Think Logically
Divorce adheres to family law standards and not from an emotional standpoint. Courts will only see how both parties are willing to work things out for their assets and parenting arrangements. While they do need to see the facts of the marriage breakdown, this will rarely affect the divorce’s outcome, especially financial settlements.
3. Prioritise What Happens to Your Children
This tip is for couples who will divorce with children in the relationship. Australian family law highly values children in a divorce setting and sees to it that they are treated properly even after a divorce. People who went through a divorce without children may never know the importance of a custody calendar.
Courts may actually give you a favourable settlement if you show that you have prepared or prioritised parenting schedules. Parenting arrangements will require you to focus on the child’s best interests.
Read: Custody Calendar: Perfecting Your Parenting Plans | JB Solicitors
The Legal Steps to Amicable Divorce in Australia
Now, let us walk you through the step-by-step process of pursuing an amicable divorce in Australia.
Step 1: Seek Legal Advice
While amicable or collaborative divorce aims to reduce conflict, each spouse must seek independent legal advice. Consulting with a family lawyer who specialises in collaborative law or mediation will help you understand your rights and obligations. They can also act as a mediator in mediation sessions.
Step 2: Mediation or Collaborative Law?
Consider whether mediation or collaborative law is the most suitable approach for your situation. Both methods have their merits, and your lawyer can guide you in selecting the approach that aligns with your circumstances and goals.
Step 3: Identify the Issues That Led To Divorce
Does your issue revolve around property settlement? Child custody and child support? What if you need spousal maintenance from your ex-partner? You should clearly articulate these matters, as this will serve as a roadmap for your negotiation during the divorce process.
Step 4: Gather Relevant Information
Ensure you have all the necessary financial and legal documents related to your marriage, assets, and debts. This includes:
- Bank statements,
- Tax returns,
- Property valuations, and
- Any prenuptial or postnuptial agreements.
Make sure to be transparent with this information and documents, as this will help speed up the divorce process.
Step 5: Negotiation and Settlement for Amicable Divorce in Australia
Under the guidance of your chosen approach (mediation or collaborative law), engage in constructive negotiations with your spouse and their legal representative. Stay level-headed when you communicate, express your concerns, and be prepared to compromise to reach a fair settlement that is in the best interests of the involved parties.
Step 6: Finalise the Agreement
Have you and your former spouse reached an agreement? If so, it is important to formalise it legally. Your collaborative lawyers or mediator will assist in drafting the necessary documentation. These documents are either:
- Consent Orders: This is an order that requires court approval. This document outlines the division of property, assets, as well as parenting matters.
- Binding Financial Agreements (BFA): This is a private contract that both parties to a divorce make. It also outlines the division of certain matters, like a consent order. However, it can be made before, during, or after divorce or separation. Unlike a Consent Order, a BFA does not require court approval, but the approval of a lawyer through independent legal advice.
Step 7: Seeking Family Court Approval
This is for divorcing couples who choose to use consent orders. In Australia, even if you divorce or separate amicably, the court must still approve the consent order to make it legally binding. This step ensures that the agreement is fair and in compliance with the law.
The Relevance of Amicable Divorce and Amicable Separation in Australian Family Law
An amicable divorce is particularly relevant in family law matters due to its potential to minimise the emotional impact on all parties involved, especially children. By fostering cooperation and reducing conflict, parents can maintain a more positive co-parenting relationship, which ultimately benefits the children involved.
For example, ex-spouses who had an amicable separation can enjoy better family holidays with their children. Furthermore, amicable divorce in Australia 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.
Is Divorce Ever Easy?
No. Divorce is never easy, and both parties will stress out in one way or another. Thankfully, there are alternatives like an amicable divorce in Australia, which is different from traditional divorce proceedings. Traditional ones are very expensive and will definitely take longer compared to mediation.
Both parties should remember that reaching a proper agreement will achieve a more satisfactory resolution. One party who wants an amicable divorce cannot minimise the emotional and financial toll of divorce. It takes two to tango, even in love and in amicable divorces.
In Australia, the processes of mediation and collaborative law provide structured frameworks for couples to engage in constructive negotiations and reach fair settlements. Through these methods, former partners can maintain control over their decisions, reduce conflict, and prioritise the best interests of their children.
Amicable Divorce in Australia With Family Lawyers
Divorce is complex, but it doesn’t have to be when you’re with a knowledgeable and experienced lawyer by your side. JB Solicitors specialises in amicable separation or divorce cases, and their expertise can guide you through the negotiation process, help you reach fair agreements, and ensure that your rights are protected.
Our divorce lawyers tailor their advice to your unique situation to know how to work on your case and identify potential pitfalls. Moreover, we can ensure that the entire divorce process is conducted in accordance with the law. Let our mediation and arbitration services help you reach an amicable divorce in Australia.
Contact our legal professionals today if you wish to avail yourself of our dispute resolution services
