One of the biggest surprises that clients get when they first meet with their divorce lawyers is the news that it is unlikely to go to court. In fact, for every 10 clients a divorce lawyer represents, it will be unusual if any more than 1 of them end up having their divorce settlement determined by a judge sitting in a family court.
There are many reasons for this but perhaps the main one is the principle in Australian family law that the grounds for divorce can only be an irretrievable breakdown of the marriage. This means that in effect neither spouse has the finger of blame pointing to them as being the cause of the divorce.
Now, in reality, that might not be the case, and it could be that one of the spouses has been unfaithful, or they drink excessively, or worse, have become violent towards their partner. However, as regrettable as all of those behaviours are, none of them will be cited as the reason for the divorce, and thus no blame is apportioned.
This is different from jurisdictions in other countries where divorce is often seen as a battle which must be won in order to prove that the other spouse is the ‘bad’ one. This means that there is usually little chance of the couple sitting down and being able to negotiate a settlement. Instead, they invariably end up in the arena of the court where the blame game is played out.
Closer to home the norm is for a divorcing couple to negotiate, via their lawyers, how they are going to settle their property, and if there are children, how to proceed in their best interests.
The starting point will be for each couple to sit down with their respective lawyers and discuss what they would like the final divorce settlement to look like. This will require as much information as possible. especially with relation to finances. The property settlement will take into account all assets and liabilities, so it is important that the figures each individual provides are accurate.
Each divorce lawyer will advise their client if they believe what they are asking for, or what they are being offered, is reasonable and fair. More importantly, should it go to court, whether they have any chance of their demands being met. In most cases, after offers and counteroffers, an agreement is made with regards to the property settlement.
If there are children involved there is probably less in the way of demands being met, as family law has very clear guidelines and principles with regards to the welfare of children of divorced parents. First, there is the principle of shared parental responsibility and thus any parent who insists they are given custody needs to have extremely clear evidence as to why the other parent should be excluded.
Again, the usual scenario is that parents are able to accept shared responsibility for their children, agree what parent they are going to live with for the most part, and what visitation rights the absent parent will have.
If all aspects of the divorce are agreed, including property and the children, then each spouse must submit a signed Application For Consent Order, and a document called the Terms Of Settlement which has all the specifics of the agreement between them. Once the court has received and checked the documentation, and is satisfied it is fair and reasonable, it will issue the order granting the divorce.