Research reveals the majority of family law disputes are able to be resolved without the Court having to make the final decision for the parties. In the majority of family law cases the parties are able to resolve the dispute (either through negotiation, mediation etc) and reach agreement and may only involve the Courts to formalise the agreement.

See the Four Step Process above.

Litigation can be costly, stressful and time-consuming. Thankfully, there are many alternatives to resolving your family law issues or disputes without commencing court proceedings. Alternative dispute resolution include the following:

• negotiation;
• mediation;
• court-ordered mediation;
• arbitration; and
• collaborative law.

Mediation is a process in which a neutral third party (mediator) help families and couples in conflict resolve disputes by negotiating a mutually acceptable agreement. It can either be an informal process without any lawyers involved or can be a formal process with an expert Mediator and the parties lawyers being present working to find solutions for the parties.

Mediation provides an opportunity for parties to resolve their disputes in a cost effective and timely manner. Litigation on the other hand can be incredibly inefficient and expensive with the costs of preparing and conducting numerous interim hearings and final trial. Additionally, litigation proceedings are often a stressful and emotional process.

In mediation, the parties are the decision makers and control the outcome of the agreement. This provides flexibility and relative lack of formality that enables parties to feel more comfortable in contrast to the formal and stressful process of having a dispute to be decided solely by a third party in litigation.

Arbitration is a process in which parties to a financial dispute present arguments and evidence to an independent arbitrator, who makes a determination to resolve the dispute. The arbitrator is an independent person chosen by both parties, who is appointed to settle the dispute. The parties lawyers each present their case during the process. Both parties must agree to participate in arbitration. If the arbitration is suitable to the dispute and the parties consent to arbitration, the benefits of arbitration can include greater flexibility, reduced cost and time effectiveness resulting in a quicker determination of a dispute as compared to litigation.

While an arbitration award (decision) is binding on the parties, it can only be set aside on very limited grounds and the parties will only have a limited right to appeal, meaning if you are disappointed with an arbitrator’s decision you may have no recourse. Additionally, many Family Law matters are more complex than first perceived and it may be more appropriate for a Judge to hear and determine the matter particularly if there are concerns regarding family violence concerns, power imbalances and controlling behaviours.

If you have successfully negotiated and reached agreement you will still need formalise the agreement you have reached otherwise it will not be binding or enforceable. This may simply involve an experienced family lawyer assisting you in formalising your agreement either through Consent Orders or a Financial Agreement in accordance with the Family Law Act. An experienced family lawyer will also be able to advise whether what you are agreeing to is fair and reasonable (just & equitable) in the circumstances to ensure you are not settling for less than what you are entitled to.

A de facto relationship is defined in the Family Law Act 1975 and requires that you and your partner, who may be of the same or opposite sex, have a relationship as a couple living together on a genuine domestic basis (but not legally married to one another or not be related by family).

In assessing if you are living together on a genuine domestic basis, the Court may look at:

• the duration of the relationship; the nature and extent of common residence; whether a sexual relationship exists; the degree of financial dependence or interdependence and arrangements for financial support; the ownership, use and acquisition of their property; the decree of mutual commitment to a shared life; whether the relationship is or was registered under a prescribed law of a State/Territory; the care and support of children; and the reputation and public aspects of the relationship.

Before the Court can determine your claim for property settlement or maintenance in respect of the de facto relationship, you must satisfy the Court that:

1. you were in a genuine de facto relationship with your former partner which has broken down; and
2. you meet one of the following 4 gateway criteria
   1. That the period for the de facto relationship is at least 2 years; or
   2. That there is a child in the de facto relationship; or
   3. That the relationship is or was registered under a prescribed law of a State or Territory; or
   4. When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice.

For married couples a property settlement can be undertaken any time after separation and there is no requirement to wait until after you divorced.

You can apply to the Court for a divorce if the marriage has irretrievably broken down, which is established if you have:

1. Separated from your spouse for a period of at least 12 months;
2. Lived separately and apart from your spouse during this time; and

There is no reasonable likelihood that you will live together again.

Yes, For married couples, the time limit for filling an application for a property settlement or spousal maintenance is one year after a divorce becomes final.

For de facto relationships the time limit for filing an application for property settlement or spousal maintenance is two years after separation.

Additionally, pursuant to s. 44(6) of the Family Law Act, the Court has the power to grant parties leave to file an application for a property settlement that is out of time. However the Court must be satisfied that hardship would be caused to the party or a child of the relationship if leave is not granted.

In Australia, a prenuptial agreement is designated by the Family Law Act as a Binding Financial Agreement (BFA)

A BFA is a private agreement between de facto couples; soon to be married couples; or already married couples; which is made either before, during or after their relationship. A BFA can be made by married or de facto couples of the same sex or opposite sex.

A BFA address how your assets, financial resources and liabilities will be divided if your relationship breaks down.

A properly drafted and enforceable BFA circumvents the jurisdiction of the Family Court in relation to financial matters should a relationship breakdown and the Court will have no power to make orders altering property interests of the parties or to make a spousal maintenance order.

A BFA can provide the benefit of parties wishing to fence off their individual assets they bring into the relationship and specify what is to be done with assets the parties accumulate within the term of their relationship.

This allows the parties if the relationship breakdown to reclaim their respective assets and divide any assets the parties have accumulated in the relationship amicable and without involvement of the Court.

There are strict legal requirements that must be complied with for BFA to be valid and enforceable as outlined in the Family Law Act (1975) including (but not limited to) that the agreement must be in writing and that each party of the relationship must receive independent legal advice before signing the agreement.

Drafting a binding financial agreement to ensure it will withstand future challenge is a complicated and technical task and should be undertaken only by family lawyers who have extensive knowledge of the legal and technical requirements.

At Thomson Law we have the legal experience of drafting many BFA’s and can provide advice as to the suitability, drafting and independent legal advice for your BFA.

When both parties reach agreement on parenting, financial matters or property division they will need to formalise their agreement. You can do this through either:

• a financial agreement (BFA), or
• An agreement formalised by applying for consent orders. A Consent Order is a written agreement in which you ask a court to make orders in the terms of your agreement. Once the order is approved by the Court it has the same effect as a Court Order made after a Hearing.

Upon separation, it will be important to review the terms of your Will (if you have one) or have a new Will to properly reflect your change in circumstances.

if a spouse unexpectedly dies during the separation process and before they are divorced, (subject to the rights of any children or dependents)  the former spouse will likely inherit the entire estate of the deceased spouse by virtue that they are still married.

If you have a Power of Attorney or Enduring Power of Attorney you should also review the terms of these documents. In most instances, it may be necessary to revoke the Powers of Attorney immediately after separation.

You should also review who is the named as your beneficiary in your Superannuation (death benefit) policy.