How to Separate Without Going to Court
It can be difficult knowing where to start and what to do once the decision to separate has been made.
There are essentially 5 different paths that are typically chosen by Australians when separating. In my experience, all methods have their pros and cons. It’s usually a combination of a few methods that work best in creating durable, inexpensive and appropriate legal agreements.
1. Direct (‘Kitchen-Table Negotiation’)
How you and your partner communicate will determine if this is the right pathway for you. For couples wanting to agree on the terms of their separation, this is a great place to start.
This is an effective method for even reaching a partial agreement, but is not advisable if parties are unable to keep civil in their communication. For parties who are unable to be respectful towards each other, it might be worth considering mediation or a family lawyer to help facilitate discussions and keep the separation on track.
With the direct method, it’s always advisable to obtain legal advice relating to your circumstances.
In Australia, you don’t need a lawyer to make your agreements legal. The Family Court and Federal Circuit Court provide DIY kits to formalise financial settlements, arrangements for children and the divorce itself. This is an inexpensive process as you only have to pay the court filing fees, however, in my experience, the average person finds this process rather difficult to navigate. You may elect to do parts of the process & outsource the rest.
Advantages: Minimal cost, quick, you and your partner control the negotiation, assists you to have a solid co-parenting relationship.
Disadvantages: Can lead to conflict, risky if you don’t know your legal rights, risky if agreements are not made legally binding, DIY kits are complex.
2. Mediation
This is a quicker, effective, more amicable and affordable approach to reaching a settlement. I struggle to see any disadvantages with this method. Mediation allows you to have a productive discussion with your partner about issues and reach an agreement in a safe environment. You and your partner have more control over the legal outcome compared to the court process where a judge will decide your legal outcome.
Family mediators specialise in Family Law mediation, they are unbiased & trained to facilitate the conversation to help you to come to your own mutual agreements. Please note, mediated agreements will still need to be legally formalised by a solicitor or you can DIY.
Mediation is flexible. You can have solicitor-aided mediation also, which allows both parties to have their own lawyers to participate in the mediation. You can also participate in child inclusive mediation, which assesses and incorporates children’s views as part of the mediation. There are many different models that can be recommended for your situation.
The key to mediation is being prepared to make use of the time. Many people starting mediation are often disorientated & don’t know where to start.
Advantages: The cost of mediation is significantly less than the court process, it is quick, simple and flexible with no complicated procedures like those in the court.
Disadvantages: An experienced mediator is crucial so ensure you choose wisely.
3. Engage Lawyers
When lawyers negotiate on behalf of their clients, it can be an effective way of reaching agreements, but there are pitfalls to this method.
In my experience, there is plenty more to be gained from a mediation in conjunction with legal advice, rather than lawyer letter negotiation. If you elect this path, it would be good to set a time limit or else your legal fees can really escalate if the negotiation is not proving successful.
A good use of Family Lawyers is to help them advise you on where you stand legally, and what a good outcome for 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. Be mindful that taking legal action 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.
Of course, there are extreme cases where lawyers will advise court action but most of the time, good lawyers should be encouraging you to mediate and view litigation as a last resort (this does not apply if children are at risk of abuse or neglect).
Advantages: Your legal rights and entitlements are protected as a trained professional will be negotiating on your behalf, removes you from the direct negotiation particularly if there is conflict.
Disadvantages: An aggressive style can escalate the conflict, timeframes can be lengthy & can become very expensive very quickly.
4. New alternatives
Simple Separation was designed specifically for individuals wanting to separate amicably and uses a combination of artificial intelligence, legal advice and mediator-facilitated negotiation to help parties achieve legally finalised outcomes. Its goal is to combine the best - elements of all the pathways to help the client reach agreements collaboratively and amicably.
With Simple Separation, you work with a fully accredited mediator who will guide you through the entire process. You will also receive legal advice along the way. You mutually agree on a timeline upfront, along with what’s most important to you coming out of your separation. Simple Separation offers a flexible process - either on a sole user or joint user basis.
Christina Salvo is the founder and CEO of Simple Separation, a ‘child-focused’ Divorce Settlement service. To receive information about our Family Dispute Resolution services, book an appointment with Simple Separation here.