How to separate and divorce amicably in Australia
Separating and divorcing amicably often turns out to be much harder than couples initially expect. To give yourself the best chance, know your options and be clear from the beginning about what’s most important to you moving forward from the relationship.
As a mediator and designer of dispute resolution systems, I’ve spent a lot of time talking to separating and divorcing couples who have agreed that they’re going to be amicable, but are struggling to find a way forward. In fact, in my experience this seems to be the rule rather than the exception.
Here I’ll lay out your options and explain how to best utilise them to keep your separation and divorce amicable, affordable, and – as much as possible – positive. I’ll point out the common traps that I see couples falling into, and give you some clear next steps to help you move forward in your own situation.
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Divorce is more than a piece of paper
This is not common knowledge and is one of the first stumbling blocks for those trying to separate and divorce amicably. Most people mistakenly believe that everything is finalised once you are legally divorced. In actual fact, legally formalising your assets and liabilities and care of your children are separate processes to getting a certificate of divorce, and something that you should do before you apply for divorce.
Because they don’t realise that these things won’t be finalised as part of their divorce application, many couples don’t sort them out early enough, and often don’t finalise them at all.
Options for amicable couples
There are a number of ways to agree and legally finalise your assets and liabilities and care of your children before applying for divorce. What’s best for your situation will depend on the kind of relationship you and your ex-partner have, how you prefer to resolve conflict, your budget, and your specific circumstances.
I’ll walk through the following options:
- Going to lawyers
- New alternatives
1. Do it yourself
In Australia, you can use the DIY options provided by the Family Court and Federal Circuit Court to legally formalise how you divide your assets and liabilities, the arrangements for the care of your children, and apply for the divorce itself.
In order to finalise things yourself however, you’ll need to first come to an agreement on how you’ll divide your assets and liabilities (known as a property settlement) and the arrangements for caring for your children. You’ll then need to formalise these agreements as an application for consent orders.
The Family Court provides a DIY kit for formalising financial and parenting agreements. As a detailed, 30 page, 11-part application form which also requires you to draft your own orders, it’s not for the faint-hearted – but it can certainly be done. In fact, you can now lodge your application for consent orders and your application for divorce online through the Commonwealth Courts Portal.
In my experience, the average person finds this process rather difficult to navigate. And with questions such as “Is there any person who may be entitled to become a party to the case under subsection 79(10) or subsection 90SM(10) of the Act?” – it’s not surprising. So if you choose the do-it-yourself option, make sure you’ve got the patience and commitment to work together to see it through.
What many couples taking the DIY option find harder than formalising their agreement itself, is knowing what should be in the agreement in the first place. The Australian Family Law Act lays out principles around how things should be divided in a separation or divorce. If your agreement doesn’t reflect these, it may be rejected by the court – regardless of the fact that you’ve both agreed to it. For this reason, we always encourage people to seek good legal advice to make sure that what they agree to is consistent with the law. If you’d prefer to form your own view on this, sites such as DIY Family Law Australia can help to explain some of these concepts in plain English.
Once you’ve come to an agreement and had it finalised as consent orders, your final step is to apply for the divorce itself. You can do this online at the Federal Circuit Court’s website.
If you think the DIY option is for you, we’ve just launched Lumi, the world’s first separation and divorce robot (with the generous support of the Queensland Government). Lumi is completely free and will work with both of you to create a personalised separation roadmap with guidance and resources at each step. This was inspired by a research piece we did on the separation experience of 50 amicable Australian couples. We found that mature and amicable couples were having great difficulty navigating the system, despite their good intentions and mutual commitment to resolving things well. Lumi was created to provide a simple, accessible first step forward for amicable couples dealing with separation and divorce.
2. Going to lawyers
Good lawyers who have a collaborative mindset can be invaluable for those wanting to separate amicably. However, many amicable couples are hesitant to involve lawyers in their divorce. In fact, those using lawyers for divorce settlements in Australia has dropped from 86% in the 1980s to only 29% in 2014.
Unfortunately, this is often a case of the baby going out with the bathwater. If you have any amount of assets, knowing where you stand in relation to the law is a really important part of coming to a fair and feasible agreement which can be legally formalised.
The instinct of many amicable couples I’ve spoken to is to find a good lawyer who can advise them both. This isn’t how our adversarial legal system works however and you’ll each be required to get independent legal advice. It’s important to find lawyers who will respect your desire to be amicable and not drive a wedge between you. A good tip here is to look for specialist family lawyers who are trained in collaborative practice. They’ll likely have the philosophical outlook and practical skills needed to help you resolve things collaboratively and constructively. They should also be encouraging you to mediate and view litigation as a last resort.
Your lawyers will advise you on where you stand legally, and what a good outcome for each of you would be. They should actively help you come to an agreement without needing to go to court, and then take care of formalising your agreement as consent orders.
It’s common for those who don’t understand the differences between lawyers to end up with someone who behaves in an adversarial and aggressive way towards their ex-partner. Getting ‘legal’ can really change the tone and escalate things quickly. And once things start to move in that direction, it can be very difficult to bring them back.
To find the kind of lawyers who will work with you towards an amicable outcome, a good starting point is Queensland Collaborative Law, Collaborative Professionals (NSW), Victorian Association of Collaborative Professionals or Collaborative SA.
Mediation is great way work through things with a neutral and unbiased third person facilitating the conversation. It suits amicable couples well because it is focused on self-determination – meaning that you both stay in control of the outcome rather than having it dictated to you by someone else.
You can mediate around parenting or finances, but be aware that a mediator’s role is to facilitate the process. So although they may help you ‘reality-test’ different options that you discuss, they won’t be able to provide you with advice about what you should do or whether what you’re proposing is a good solution for you.
You also need to know that agreements made in mediation won’t automatically be legally binding, so you’ll still need to have a lawyer draw them up or formalise them using the DIY options I mentioned earlier.
Your mediator will start by meeting each of you individually for an intake session. This usually takes between 30 mins to an hour and gives you the opportunity to talk about the situation frankly in a confidential environment. They’ll also use the intake session to explain the process to you and answer any questions you may have.
You’ll then meet together for the mediation session itself. Mediations usually take 2-4 hours and will start with the mediator inviting each of you to talk about things from your perspective and creating an agenda for the session together. This is followed by a period known as ‘exploration’, where the mediator will facilitate a discussion between you about each of the items on the agenda. Talking through each one helps to identify the various options that are available and get them onto the table. During the mediation, the mediator will likely break out into private, one-on-one sessions with each of you to see how you’re doing, ‘reality test’ your options and coach you through the next part of the mediation. Finally, the focus will turn to negotiating an agreement that you can both live with, with that agreement being written up by the mediator as a heads of agreement and signed by both of you.
If you’d like to use mediation to come to an agreement, find a mediator who is Nationally Accredited. The Australian Mediation Association can help you find a qualified mediator and they also offer an online mediation service.
If you need to mediate around parenting, also ensure your mediator is accredited as a Family Dispute Resolution practitioner. Family Relationship Centres are funded by the Australian Government and offer low-cost parenting mediations, along with a range of other services, so make a good starting point for those who need to resolve parenting going forward.
4. New alternatives
Technology-based innovation like Uber and AirBnB have changed how we get around and travel, and it’s also changing how we separate and divorce. The Adieu Assist was designed specifically for amicable separating couples and uses a combination of artificial intelligence and expert human support to achieve legally finalised outcomes. Its goal is to combine the best elements of the 3 options that we’ve walked through so far.
In the adieu process, you work with an unbiased mediator, who guides you both through the entire process. You mutually agree on a timeline upfront, along with what’s most important to you coming out of your separation. If you have children, your mediator walks you through the creation of a signed parenting plan to ensure that you’re on exactly the same page before talking about financial things.
You then both use cloud-based tools to agree on what you’ve got and what it’s worth, with your mediator identifying any potential disagreements and helping you align. You each select a lawyer from the adieu panel and send them a brief with the click of a button. They talk you through where you stand in regards to the law, and give you a sense of what your best and worst case scenario could look like. A third lawyer also looks at your situation and provides an independent view.
You each then explore your options individually with your mediator by moving things around on a touchscreen. The intelligent tools provide real-time feedback as you go on how fair and feasible each option is. This takes the advice of the 3 lawyers into account, and works out how well the option will work financially.
You then both come together with your mediator to create a final option, which becomes your financial agreement. This is written up as consent orders by a lawyer and sanctioned by the court. If you were married, you then finalise the divorce through the online divorce application.
This approach is proving very effective at getting couples to amicable resolutions quickly but it requires couples who are prepared to mutually commit to being transparent and working to a timeline.
Adieu is currently available as an in-person service in Brisbane and via video conference in NSW, Victoria and the rest of Queensland. It has also had the generous support of the Queensland Government. You can learn more at www.adieu.ai or watch this brief explainer video.
By choosing to separate and divorce amicably, you’re doing something positive for yourself and your children. It will probably be harder than you anticipate, but with the right approach and a mutual commitment to staying focused on what’s important, you’ll make it happen and will be glad that you did.