Can You Avoid Court When Separating?

Common misconceptions about how to keep divorce out of Court

The main misconception I’ve seen in my time as a family lawyer is that a separating couple believes they can strike an agreement without involving lawyers at all. Often they have the goal of saving time and money but what can end up happening is quite the opposite. 

When a separating couple comes to an agreement about children and/or financial matters outside of Court, they may not have it formalised in a legally binding document, such as consent orders or a financial agreement. Unfortunately, this handshake deal won’t hold up in Court. 

I have seen it happen on many occasions, that people believe that if they write something on a piece of paper, have it signed by both parties and have their signatures witnessed by someone such as a Justice of the Peace, it will be final. This is not enough to hold up in Court. Unless you have a legally binding document – either consent orders or a financial agreement – either party can apply in the future to seek a different settlement. Say, for example, that one party decides to pursue a property settlement through the Court in the future. If no legally recognised document is in place, this can be done, even if a property has already changed hands. 

A formalised financial agreement or consent orders is therefore essential. But do they need to be done through a family lawyer?

How the process works – parenting and property arrangements

A financial agreement must have a family lawyer involved to give advice. Why? Because it is a requirement that each party receives independent legal advice. A lawyer has to sign a statement saying that they have given their client advice about the advantages and disadvantages at the time of making the agreement and the effect the agreement has on their rights.

Some clients believe they can turn up to the first appointment with an agreement that’s been drafted and request a lawyer to sign on the dotted line, but that’s not quite how the process works. It’s not simply a matter of the solicitor just signing off on a statement. They need to review the agreement and the client’s circumstances and provide a letter of advice for their client. 

When it comes to consent orders, parties don’t necessarily need a lawyer to sign off on the document. But it’s always our advice that our clients have their orders reviewed before they are signed and sent to the Court. We advise this because when a couple separates, there can be a lot of stress involved and it’s quite easy to agree to something which can have serious consequences down the track. 

Some of the common things that people overlook when dividing property, for‌ ‌example, are the closing down of joint bank accounts or joint credit cards. If this isn’t part of the order it’s easy to be forgotten and problems can ensue if the account closures are not included in the orders.

The other important reason for people to get advice about consent orders is to make sure that the orders actually do what the parties want them to do. For example, if you’re transferring property from joint names to one party’s name. If the order is drafted correctly, they are exempt from having to pay stamp duty on the transfer as a result of the transfer happening pursuant to an order made under the Family Law Act.  

So while people may get upset about having to pay a lawyer to look at the order, when they’ve already reached an agreement, if the order is not correct they could be assessed and be required to pay stamp duty on it. This may result in being significantly more than the original lawyer’s fee of looking over the orders. 

We always tell our clients to also get advice from their accountant or financial planner before entering into any property settlement agreement. They need to be aware of the financial or tax consequences of any action.

Sometimes a client might be better off financially accepting a lower percentage of the property pool because when a financial planner looks at the composition of assets that one party wants to retain, it might be better for them in the future to have particular assets as opposed to concentrating on getting a larger percentage of the overall pool.

What steps can you take to avoid going to Court?

If the separating couple have children, then before applying to the Court, in the majority of cases it is compulsory you attend mediation. Why? Because you need what is called a ‘Section 60I certificate’ to be included with your application for parenting orders before it is filed with the Court. 

But there are exceptions that can arise. For example, mediation may be deemed unsuitable if there has been family violence or there is urgency to the application. For example, if one parent has retained the children for no valid reason and is refusing to facilitate any time with the other parent, then you may get an exemption that way. 

We often say to our clients that if you can reach an agreement at mediation, you are going to save yourself significant legal fees in the future.There are community legal centres who will do mediation for parties at a minimal cost, or if certain circumstances are met these centres might offer these services at no cost. The problem is that some of these centres have significant waiting lists so people may wait a considerable time to start mediation. If you want to try and get some certainty about your parenting arrangements moving forward, that’s a delay that you will not likely wish to wait for. 

We suggest good mediators in private practice. While they are more expensive than the community legal service, you are not restricted by time and can get a mediation quickly, usually within a month or two.

The first mediation regarding parenting arrangements often provides you with some guidelines right from the start which can eliminate any conflict or difficulties that arise in the future. You don’t have to reach an agreement at that first parenting mediation for what is going to happen in the long-term. It might just be for the next six months, this is what we’re going to trial and we’re going to review it after that to see how the kids have been going with it in place, and whether the agreement we reached today is in the children’s best interests.

When a client comes to us we give them advice as to whether we think their proposed agreement is something that the Court would consider to be in the children’s best interests. 

It’s good to get professional legal advice first, because if you have already struck a deal, you may be unaware that what you have agreed to is not an appropriate outcome. 

In situations where lots of discussions have already occurred, it can be really difficult to then try and convince your former partner that the agreement that you’ve reached between yourselves is no longer appropriate. Then when you renege from it, this can prolong negotiations and sometimes result in additional legal fees.

It’s not compulsory to go to mediation before you apply to the Court for property orders. But once you get into Court, one of the orders that the court is likely to make is that the parties go to mediation to try and resolve their property matters. So, even if you do try and go to Court, they’re going to pull you back and encourage you to go back to mediation. 

More often than not, parties agree to go to mediation for both property and parenting matters prior to applying to the Court, keeping Court time to a minimum. 

Mediation for a property matter can take longer than parenting orders because there is upfront work involved such as obtaining valuations, exchanging disclosure and settling the property pool. We do this to give our client the best chance of resolving the matter. They need to be fully aware of what is in the property pool so that we can give them advice as to what their range of entitlements is. 

That way, when they get to mediation, they are able to make an informed decision about whether they want to reach an agreement, having had the benefit of knowing exactly what the property pool is and having the benefit of receiving legal advice about it.

Steps you can take to avoid Court

When you seek legal advice from the start you can be confident about where you stand. As a family lawyer, I know that separation is hard and there are a lot of heightened emotions. Having a lawyer can facilitate effective communication with your former partner to make sure the communication lines are open. 

There is nothing wrong with saying that you will need a few days to think over something your former partner has proposed as part of your separation plans. You don’t need to say that you are getting your lawyers advice. It’s just about acknowledging the communication from them, letting them know that you are considering it and giving them a timeframe for when they should expect a response. 

Once parents stop communicating effectively it can have a significant impact on the children. In the instances where communication breaks down, we often see everything put on the table and used as evidence. With the technology we have available now, people record each other and if required, your lawyer may need to go through listening to hours of recordings. Which of course means the costs are going to increase significantly. It is in your best interests to seek legal advice early to minimise the chances of a communication breakdown and increasing the chances of having to go to Court to settle your parenting or financial arrangements.

Identifying the right lawyer for you

It’s really important that clients engage a lawyer who you have trust and confidence in and who you feel is the right fit for you. If you can get an effective and workable client-lawyer relationship, then that’s a good start to keep negotiations to a minimum.

To keep a separation outside of the Court you will want to find a lawyer who is pragmatic and focused on resolution. Sometimes it helps parties if the lawyers can pick up the phone to each other and have a conversation about what their respective clients need in order to try and resolve the matter. 

Sometimes clients will seek my advice to recommend a lawyer for their former partner. At first, you might think that seems strange, why would a lawyer recommend someone else? But the best lawyers are those who can have a good relationship with other lawyers in the community. Most lawyers know each other and know how they work. So if I have a client coming to me saying, I want to resolve this as amicably as possible, I’ll give them recommendations of the lawyers who I know work well with and are focused on a resolution not a drawn-out legal battle in Court.