Married couples who separate rarely have an amicable divorce in Australia. 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. Even after a divorce, either party will feel the defeat and have lingering feelings of regret and resentment from the other party.
However, not all divorces can end in a negative light. Just like separation, married couples who will divorce can still have closure and agree on asset, property, and parenting arrangements. Even married couples deserve peace of mind after a divorce. They deserve to start anew after closing the chapter of a failed marriage.
What Is Amicable Divorce in Australia?
This is where amicable divorce comes in. Usually, this is done through mediation with a family lawyer who will act as a third party during the process. The family lawyer or mediator will help the distraught couple minimise conflict by:
- Listening to both of the parties’ sides and point of view
- Helping create a calm atmosphere for the conflicted couple
- Suggesting 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 encourages couples to resolve their differences through negotiation and compromise rather than resorting to adversarial litigation which is costly and lengthy. The primary goal of mediation is to reach a fair and equitable settlement that considers the needs and interests of both parties, particularly when children are involved.
Tips for Partners Who Want an Amicable Divorce in Australia
1. Both Parties Process Their Feelings 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 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. Make a Draft of a Custody Calendar
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. See our article about the importance of this calendar.
The Role of Mediation and Collaborative Law
Mediation and collaborative law are an integral component 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.
The Legal Steps to Divorce Amicably
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, it is crucial for each spouse to 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: Choose the Right Approach
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
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 these 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. Be 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. Parenting arrangements will require you to focus on the child’s best interests.
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 a:
- Consent Order: This is an order that requires court approval. This document outlines the division of property, assets, as well as parenting matters.
- Binding Financial Agreement (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 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?
Divorce is never easy and both parties will stress out in one way or another. However, there are alternatives like an amicable divorce in Australia which is different from traditional divorce proceedings. It takes both parties to a divorce to reach a proper agreement to achieve a more satisfactory resolution while minimising the emotional and financial toll of divorce.
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.
Importance of Seeking Legal Advice for Amicable Divorce
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 can provide legal advice tailored to your unique situation. We will tirelessly work on your case and help you go through any 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 a divorce lawyer today if you wish to avail of our dispute resolution services for your divorce.
