Below you will learn:
- How to get a divorce without going to Court
- How to get a custody agreement without Court
- How to financially separate without the need to end up in Court; and
- The family law processes currently in place that help more people avoid the need to go to Court.
Whether it be early or later in a separation, disputes commonly arise relating to the negotiation of time with children and how to divide finances and property. Most people are aware that when a family law matter goes to Court, it adds time, expense and stress to what is an already challenging process. This page explores tips for how to avoid Court and the steps required before a family law case will be put before a Court.
Separation & Divorce Without Court In Australia
In late 2021, the Court that manages family law cases in Australia made some significant changes to minimise what has historically been a backlogged system. A focus of these changes was to maximise the opportunity for more matters to be managed outside of the Court, as well as making the process faster and less expensive.
The change involved the introduction of a revised pathway that you may hear referred to as ‘pre-action procedures’. Essentially this refers to the steps that are to be taken to help disputing parties to resolve their matter outside of Court. This leaves the 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, making the process faster overall.
Find the information specific to divorce below and then read on for information that pertains to both de facto relationships and marriages coming to an end.
How To Get A Divorce Without Going To Court
The step of applying for a divorce can be done without needing to attend Court in some circumstances.
If you and your former spouse make a Joint Application (both parties submit the application together), you do not need to be present for the divorce hearing. However, if you are filing a solo application and you have children together under 18 years of age, you will be required to attend the divorce hearing.
Other reasons why you may need to attend your divorce hearing is if either party objects to the divorce application or if either party objects to the hearing being held in their absence.
So, while getting a divorce without a Court appearance may be possible, that is different to staying out of Court for related family law matters as we will explore below.
How To Get A Custody Agreement Without Court & How To Settle Parenting Matters Outside The Court
If you and your partner or spouse are able to agree upon what is commonly referred to as custody arrangements (but legally referred to as a ‘parenting arrangements)’, then you will likely be able to avoid having to go through the Court system for this matter.
Sometimes agreeing on an arrangement that works best for not just yourself and your former partner or spouse, but importantly, for your children as well, can be very challenging. If this is the case, Family Dispute Resolution (explained in more detail below) can be used to help facilitate effective communication and inform legal considerations that may be pertinent to any arrangements being discussed. Whether you find yourself and your spouse are able to agree easily or not, it is still possible to avoid the Courts when forming custody arrangements.
Some people mistakenly believe that engaging a family lawyer will inevitably mean that they will end up in Court. This is certainly not the case.
Engaging a family lawyer early on in the process can actually prevent a parenting matter from entering the Courts. Lawyers can help you and your spouse by providing guidance on the following:
- The legal considerations must be accounted for in parenting arrangements
- How to best future proof arrangements by factoring in children growing up and other often overlooked considerations
- Documentation that needs to be completed as part of the out of Court process.
Many clients we see want to know how to get a custody agreement without Court. In our experience, when both parties engage in negotiations in good faith and with knowledge of how the law views parenting arrangements, settling matters without the Courts is very achievable.
How To Financially Separate Without Going To Court
Financially separating from a spouse can be a complex and emotionally charged process. As with parenting arrangements, even in complex situations, it is very possible to prevent the need to go to Court.
What is critically important, is understanding the legal requirements that need to be considered. It is also worth being aware of what you may be entitled to legally, to ensure you don’t find yourself agreeing to something that you may later regret. Getting this information early in the process can make an agreement easier to reach. Family lawyers know that most clients wish to avoid going to Court.
An experienced family lawyer can:
- Provide assistance in the negotiation process
- Give guidance as to what the critical legal considerations may be in negotiating property and other assets
- Direct you to what evidence may need to be collated as part of the settlement process
- Assist you with any paper work that needs to be submitted once an agreement has been reached
Financially separating can be a complex process but that does not mean it needs to be completed in the Courts. Armed with an understanding of the relevant legal consideration, and an agreement to engage in the pre-action procedures in good faith, you can keep your matter out of Court.
So, what are the pre-action procedures that can help keep separation and divorce out of the Courts?
Alternatives To Family Court: Pre-Action Steps
While there are many legal similarities in the processes to be followed at the end of a marriage (divorce) and the end of a de facto relationship (separation), there are also some slightly different approaches for both parenting arrangements and property settlements.
Regardless of which situation you are in, the steps below will apply to you. These are the steps taken to arrive at an agreement with your former partner or spouse. They are the steps you will take in order to prevent your matter from ending up in Court and when entered into in good faith by both people involved, we have found that time and costs are reduced and the risk of having to settle matters in Court are minimised.
Step 1: Family Dispute Resolution
The first step is to participate in a mediation or another dispute resolution method. 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. 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 and frank 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 however, there are elements of the separation that can not be agreed to in the mediation (or other dispute resolution) process, and you can prove that you have attempted to resolve your dispute, then the next step can be taken. Taking the next step does not mean your matter will end up in Court.
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.
Step 3: Responding to Notice of Intention
If a Notice of Intention is issued, it will include an offer detailing the suggested terms of an agreement. That notice will also state a timeframe in which the recipient needs to respond to the offer. The time frame in which to respond should not be less than 14 days.
At the earliest opportunity from receiving this notice, the recipient should discuss the offer with their family lawyer to understand the options before replying. A good family lawyer will provide insights into what the possible outcomes might be if the matter goes to Court, and the recipient can make their decision from an informed standpoint.
If you and your former spouse can agree at this stage, whether to the initial offer, or through back and forth negotiations, then you can keep your matter out of the Courts.
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. They are not dictated by the Courts, they are the arrangements agreed to in the mediation and dispute resolution stages. Having your family lawyer involved in this step 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.
Separation and Divorce Without Court | 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 and you maximise your chances of reaching an agreement that leaves you both satisfied and enables you to avoid going to Court.
Accredited Family Law Specialist
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