Separation & Divorce Without Court: The 4 Steps Before a Dispute Can Go to Court

The Revised Processes to Help Australians Separate & Divorce Without Court

The Court that manages family law cases in Australia made some significant changes in late 2021 to minimise what has historically been a backlogged system. Two Courts merged into one and a new system to better manage the volume of cases was introduced. The goal was to make the process of family law issues faster, less expensive and less stressful, while also maximising the opportunity for more matters to be managed outside of the Court itself.

The change involved the introduction of a revised pathway that you may hear referred to as ‘pre-action procedures’. Essentially this means steps that are to be taken to help disputing parties to resolve their dispute, and keep Court as a genuine last resort. While there have always been alternatives to resolve family law disputes, these pre-action procedures help better distribute some of the issues that can often be resolved or decided upon faster than others.

After all, singular issues that have the ability to be resolved faster than complex cases, should be able to be dealt with promptly. For example, in a situation where one parent does not give consent for a child to get a passport to travel overseas to see one parent’s family, that can now be managed faster because that matter is no longer sitting in a queue behind longer, more complex family law cases.

While the changes have added a whole raft of extra documents, subsequently increasing some of the legal costs earlier on in the process, fortunately there have been inroads made in minimising the lengthy delays that we previously saw for a range of issues.

So, what are these pre-action procedures that can help with the processes, specific to issues relating to separation and divorce?

Pre-action Steps

There are slightly different approaches to the resolution of both which you can learn about with more detail here and here on the Federal Circuit and Family Court website. However below we share with you the path that is to be followed before a matter can be put before a Court.

Step 1: Family Dispute Resolution

The first step is to participate in a mediation or another dispute resolution method. While we have unpacked what is involved in mediation in depth in this article and this article, this step is required so both you and your former spouse or partner can be supported in the negotiation process, with the goal of resolving your dispute. During this process you should seek advice to be informed about your obligations and what the law says is appropriate, and ideally, you will negotiate the terms of your agreement with the support of your family lawyers on hand for advice.

If there are property disputes, both you and your former partner will be required to provide a full disclosure of all of your finances and assets prior to participating in mediation. If there are disagreements about the value of a house for example, then a formal valuation will need to be completed beforehand.

If both you and your former spouse or partner intend to keep the process out of the Courts and can engage respectfully with the assistance of your lawyers, then it is possible to achieve a Consent Order (like a Court Order, but devised outside of the courts) detailing the particulars of your parenting agreement or property settlement.

If there are elements of the separation that can not be agreed to in the dispute resolution process, and you can prove that you have attempted to resolve your dispute, then the next step can be taken.

Step 2: Notice of Intention to Explore Settlement Options

The next step is for a Notice of Intention to be sent from one party to the other to commence Court proceedings. This written notice needs to outline the issues in dispute, evidence to support that the issuer has endeavoured to resolve as many issues as possible in the dispute, and there should also be an offer – suggested terms of the agreement.

Unfortunately, we see that some individuals and their lawyers weaponise this step by issuing the Notice of Intention before the mediation has occurred. This places undue stress, tight timeframes on the other party and cuts out the ‘good faith’ element of mediation. By not completing the steps as they are intended, there is no technical breach of the law, however it is not in the spirit of the Rules and this new process. We recommend that you speak openly with your former partner, as well as your own lawyer, about your desire to keep matters out of the Court and to ensure that the mediation (or other dispute resolution approach) is completed first.

Step 3: Responding to Notice of Intention

If you receive a Notice of Intention, with that you will receive an offer detailing the suggested terms of an agreement. That notice will also state a timeframe in which you need to respond to the offer. The timeframe should not be less than 14 days.

At the earliest opportunity from receipt, discuss the offer with your family lawyer to discover your options before replying. A good family lawyer will provide you with insights into what the possible outcomes might be if your matter goes to Court, and you can make your decision from an informed standpoint.

Step 4: Consent Orders

If you agree to the terms offered or you resolve your dispute at mediation or at any point up until your Court hearing commences, any terms that are agreed to will then need to be drafted to create Consent Orders. Consent Orders outline the arrangements, surrounding children or finances or other matters agreed to. Having your family lawyer involved in this ensures that the Orders are written up correctly and are likely to be approved by a Judicial Registrar of the Court, whose role it is to ensure that the terms are just and equitable, as defined in family law.

Consent Orders become Court Orders once approved by the Court and are then considered legally enforceable.

The First Step To Avoid Court

While some people hold the belief that the best way to avoid Court is to avoid bringing the lawyers into it, that is not the case. Early advice is often what helps people avoid Court as well as get to an agreement that is beneficial for them in both the short and long-term.

When you seek legal advice, choose your family lawyer wisely to ensure they are invested in helping you achieve your goal to avoid Court. Good family lawyers know that most people wish to avoid Court and will support their clients in this. In your meetings with your lawyer you will become aware of the strategies that could be adopted and understand the steps required.

If you delay in getting specialist family law advice, you miss out on learning what you should know about family law before negotiating any agreement. When both you and your former spouse or partner seek your own independent legal advice you can both be clearer about why the terms of an agreement might need to be reconsidered and reevaluated.