Separating or Divorcing? Top 10 Tips to Get You Through It

Try to remain child focussed

January is often known as “Divorce Month” in Family Law circles. Anecdotally, we often find many people make the decision to separate or formalise their separation in or about January. Whether it is due to the stress of the festive season or a New Year’s resolution, no one quite knows.

The decision to end a relationship is a very personal one and despite the stress and heartache associated with a relationship breakdown, formalising property settlement or parenting arrangements does not have to be painful or drawn out. Here are our top 10 ten tips to help you resolve your matter with as little fuss as possible:


1. Where able, reside in separate residences. Before the court can grant a divorce, it must be satisfied the parties have been separated for at least 12 months. If you remain living with your spouse after separation (known as separation under the one roof) you will be required to file an additional document with your divorce application, namely an affidavit as well as possibly one by another witness in support. If you have not lived under the one roof with your spouse during the 12 month separation period, affidavits are generally not required.

2. File a joint application for divorce. If you and your spouse file a joint application, you do not have to prove the documents have been served on the other party. Your spouse may also agree to pay half of the divorce filing fee.

Property Matters

3. If you can, speak directly with your spouse. Although a handshake agreement is not enforceable, if you and your spouse reach an in-principle agreement, a family lawyer can assist you to formalise the agreement relatively easily.

4. Formalise your agreement through Consent Orders. As the name suggests, there are orders made by the court with the consent of both parties. There is no need for either party or their respective lawyers to attend court. The relevant documents are simply drafted, signed and forwarded to the court and, where the proposed settlement is deemed to fall within the ‘just and equitable’ range of results, they will be sealed (approved) by the court and returned to you. You then have an enforceable agreement.

5. Get your finances in order. A key component of any property settlement, including those by agreement, is proper financial disclosure. We sometimes meet clients who don’t know how many bank accounts they have or which super fund they are with, delaying the resolution of their matter while they try to find out. These days, most information is easily accessible on the internet and will make it much easier for you to obtain and collate your disclosure documents, a necessary first step in the process leading to settlement negotiations. If there are financial documents belonging to the other side freely available to you, make copies of same.


6. Try to remain child focussed. We find that parents who remain child focussed are more likely to reach an amicable resolution and protect their children from the dispute. Children are not possessions, so it is not a matter of fairness (“s/he has them for one week, then I should have them for the same period”). Remember, it is a child’s best interests that are the paramount consideration.

7. Consider a Parenting Plan. Provided the parties have a good co-parenting relationship, there is no legal requirement to formalise the arrangements. A Parenting Plan reduces the parties’ agreement to writing with signatures on the document, and is often prepared by a mediator. While such documents are not legally enforceable, they perhaps provide more certainty and clarity than a handshake agreement, and they are required to be brought to the court’s attention to evidence at least the parties’ intentions should one party commence proceedings.

8. Again, consider Consent Orders. If you want the certainty of an enforceable agreement, an experienced family lawyer can draft and finesse your agreement into such document that is then filed at court. Most parties prefer (and we recommend) such course of action because it holds them to account in respect of their responsibilities and duties. As long as the agreement is deemed to be in the best interests of the children and are reasonably practicable, the process should be hassle-free.

9. Attend family dispute resolution. Family dispute resolution (“FDR”) is a special type of mediation to assist separated parents and is offered by government and community based service providers (such as Relationships Australia), or private FDR practitioners. If you reach an agreement, it will usually be drawn up as a Parenting Plan that a lawyer can then use to prepare Consent Orders (see point 8 above). If you are not able to reach an agreement, you will be issued with a Section 60I certificate which you will need if you want to commence court proceedings seeking parenting orders.

10. Above all, get specialist family law advice. Family law is a highly specialised area and it is important you obtain legal advice from only experienced family law practitioners. It is always unfortunate when we hear stories from clients about advice they received from generalist lawyers that turned out to be incorrect, delayed resolution of their matter or made it more expensive.

If you or someone you know needs expert advice from our specialist team of family lawyers, phone us on 1800 600 664 or complete the contact form on this page.

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