The end of a relationship is one of the most difficult times in any person’s life. Making the grief and trauma that accompanies this event even harder to deal with is the fact that many important life matters need to be decided.
Perhaps you owned property jointly with your ex-spouse, or have children together, or ran a business together. If you wish to effectively separate your lives and move forward, arrangements for all of these matters need to be made.
When the breakdown of a relationship is bitter and acrimonious, the two parties will often end up in court where a judge will be called on to decide matters such as division of property, parental responsibilities and spousal maintenance.
But for many people, it’s increasingly recognised that court is not always the best place to resolve these matters. The adversarial nature of legal proceedings, where each party’s lawyer presses hard for the best result for his or her client, can lead to a ‘winner-takes-all’ result and a hardening of enmity between the former partners. This is particularly damaging where children are involved.
What are the key issues after separation or divorce?
Separation and divorce are not the same. A married couple who separate stop living together “as a couple”. They may even continue to live under one roof but if both understand that their relationship has ended, then it can be regarded that they have separated. No official notification need take place for this to happen.
After 12 months of separation, a couple can legally apply for a divorce, either as a sole applicant or jointly. If there are children from the marriage, you and your partner will need to show the court there are proper parenting arrangements in place before applying for a divorce. But applying for divorce does not necessarily mean that other important issues such as a property settlement, child support or spousal maintenance are finalised. These will need to be addressed separately, within certain time frames. This is where expert legal advice is particularly valuable.
Finalising the division of property, such as the family home and assets such as cars, as well as debts and superannuation interests, is often the most conflict-riddled aspect of ending a relationship. One party, for example, may wish to stay in the former family home and wants to buy out their ex-partner’s interest in the property. Other times the ex-couple may wish to sell the house and divide the proceeds. Whatever the situation, a property settlement needs to be made and this is where the mediation process can be most effective.
The benefits of mediation
Mediation involves both parties meeting in the presence of a neutral third party, the mediator, a qualified individual who helps both sides discuss and clarify the key issues between them and facilitate both parties negotiating a settlement.
Mediation is designed to avoid the winner/loser outcome often produced by the court process. Instead, by helping the former partners create their own agreement about how to divide the property from the relationship (as well as child-rearing arrangements, maintenance and other issues, if they wish), both parties get at least some of what they wanted. As long as both parties agree, each can have their legal representative present at the mediation to help them in conducting negotiations.
The chief benefits of mediation are that it is almost always quicker and cheaper than going to court; the process is private and confidential; and because the ex-partners create their own mutually satisfactory resolution, they can then carry on a civil and courteous relationship beyond the negotiations, a key consideration where children are involved.
The importance of legal advice
If mediation leads to a negotiated agreement between the two former partners, it can be documented by the mediator and filed with the court. The court can then use the agreement to make legally binding Consent Orders, formalising the agreement as one both parties will abide by.
Consulting with an experienced family lawyer through this process is the best course of action. They can organise a mediator, including liaising between the ex-partners and help you clarify the important issues that need to be worked through before negotiations begin. An expert family lawyer will also advise you on the various time limits applying to matters around divorce and property settlement.
The family law team at Big Law have the expertise and experience to help you through the difficult time after separation or divorce. We approach every case with compassion and sensitivity, with the aim of helping you and your ex-partner reach an agreement that works for everyone involved. Contact our Strathpine family lawyers by phone at 07 3112 7998 or email at [email protected] to schedule an appointment about resolving your family law matter today.