Court or no court? Here’s how to get a divorce in Australia.

There are a few routes to independence. You need to choose the one that’s right for you.

By:
Aynsley Jurson
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When you think of getting a divorce, do you imagine a stern looking judge deciding who gets the house, the family pet and the kids every other weekend? You might be surprised to find out that only three per cent of divorces in Australia go through litigation. Most divorces get settled through one of the other ‘ions’ – mediation, collaboration and settled negotiation.

Each type of divorce has its pros and cons. There is no “best” path as every situation is different. The preferred scenario is to stay out of court and reduce the time, money, stress and long-term impact on relationships. But that’s not always possible.

Let’s take a look at your divorce options so you can choose which path best suits your budget and relationship dynamic.

Option 1: Do-It-Yourself

The Family Court of Australia offers Do-It-Yourself Kits for couples who want to handle their own divorce. This option isn’t recommended unless you have no children and very minimal assets.

How does it work?

You and your spouse fill out a joint Application for Divorce. You sign the papers in front of a Justice of the Peace and either drop them in or mail them to the family court. You will be given a court hearing date and will each receive sealed documents from the Court. You will not need to attend the hearing.

OR

You fill out a sole application and send it to family court. You will be given a court hearing date and will receive two sealed copies of your divorce papers – one for you, and one to serve to your spouse. Your spouse will have the option to file a Response to Divorce. If your spouse does file a response or if you have a child under 18 years old, you will need to attend your court hearing.

Pros:

  • This is the cheapest and quickest way to get a divorce providing you and your spouse agree on the division of your finances and parenting arrangements.

Cons:

  • You will not have any professional advice and support on hand which might result in making unwise choices and ending up with a less than ideal settlement.
  • DIY divorces involve lodging documents with a court but they don’t cover the big picture of settlement negotiations. That’ll be entirely up to you.
  • You need to completely trust that your spouse is not hiding any assets or debts.
  • It takes time, knowledge and attention to detail to fill the paperwork out correctly.

Option 2: Direct Negotiation

If your budget is limited, direct negotiation is a cost effective pathway to divorce. If you are considering this route, you need to ensure that your assets and structures are relatively simple to understand. You also need to be able to communicate with one another openly and respectfully with an equal balance of power.

How does it work?

You and your spouse negotiate your divorce directly with one another. Once you’ve come to an agreement, you involve lawyers to draw up the paperwork that makes your agreement official.

Pros:

  • Apart from DIY, this is the least expensive pathway to divorce because lawyers and other professionals are not involved in the negotiation process.
  • You both have a sense of ownership over the outcome and are able to set a good foundation for communicating post-divorce which is particularly beneficial if you have children.

Cons (or things to note):

  • You will not have the benefit of legal advice and/or a financial expert explaining the outcomes of various settlement options.
  • If there is an imbalance of power or financial knowledge between you and your spouse, you may feel pushed into a settlement that isn’t in your best interests.
  • It can be overwhelming and stressful trying to get your head around all the figures, options and outcomes.

Option 3: Mediation

Mediation is when you and your spouse come to a mutual agreement with the help of an independent third party called a mediator. The mediator helps you communicate and resolve any issues without going to court. Mediation is a great option if you and your spouse mostly agree on the division of your finances and parenting arrangements.


How does it work?

The mediation process can be tailored to your circumstances but usually you and your spouse would meet with the mediator at their office or a neutral location.  The mediator will assist with the negotiation process by asking questions and encouraging open discussion. The mediator may meet with you together and separately to help you come to an agreement.


Pros:

  • Hiring a mediator is less costly than hiring a lawyer.
  • You have control over your settlement as you are not handing the decisions over to a judge.
  • Working together to come to an agreement role models dispute resolution, resilience and collaboration to your children, friends and family.
  • It allows for creative financial and parenting solutions that work for your family.
  • If the process doesn’t work, you can pursue an alternative divorce pathway armed with a lot of knowledge.

Cons (or things to note):

  • If you’re introverted or intimidated by your partner, you may not feel confident or self-assured enough to speak your mind and advocate for yourself.
  • If your spouse has been abusive – emotionally, financially or physically – mediation is not recommended as it is usually in your best interests to limit contact.  

Option 4: Collaborative divorce

Collaborative divorce is gaining popularity in Australia and for good reason. It combines the skills of an interdisciplinary team who work with you to come to an agreement that benefits the family as a whole.

How does it work?


You and your spouse each engage a collaboratively-trained family lawyer who helps you understand the legal side of things. You also both work with a neutral financial professional (like us) who helps you understand the financial components of your divorce. The team also comprises of a family counsellor or psychologist to help you communicate as well as a child psychologist to ensure your children are heard and supported during the negotiations. Your chosen team of professionals will work together to ensure you come to a mutually acceptable agreement.


Pros:

  • As the process is voluntary, you and your spouse are more likely to come to a mutual agreement and stick to it post divorce.
  • You have control over your settlement as you are not handing the decisions over to a judge.
  • Engaging a range of professionals will help you navigate the emotional upheaval because expert advice and emotional support will be on hand.
  • It’s an opportunity to preserve your relationship with your soon-to-be ex and role model dispute resolution, resilience and collaboration to your children, friends and family.

Cons (or things to note):

  • It can be costly to engage a range of professionals as each will need to be paid a fee. However, the fees can often pale in comparison to long-winded legal battles.
  • If your spouse is reluctant or argumentative, the negotiation process may be fruitless.
  • If you are unable to come to an agreement, both you and your spouse will need to engage new legal representation which can be time-consuming and costly.
  • If your spouse has been abusive – emotionally, financially or physically – the collaborative divorce process is not recommended as it is in your best interests to limit contact.  

Option 5: Settled negotiation

Settled negotiation is when you and your spouse engage lawyers independently and they negotiate an out-of-court agreement on your behalf. If an agreement can’t be reached, you can escalate the process to family court where a judge will decide.


How does it work?

You communicate your preferred settlement terms with your lawyer and they meet with your spouse’s lawyer to negotiate the agreement. During this process, your lawyer will liaise with you about terms that have been agreed to and terms that require further compromise and negotiation. This will continue until a settlement is reached.

Pros:

  • You do not need to be present for the negotiation process and can have some distance from your spouse if the relationship is tense.
  • Your lawyer will advocate on your behalf and will not be driven by emotions, rather by strategy. If you are feeling hurt or betrayed, it might be best for you not to be in the same room as your ex.

Cons (or things to note):

  • Hiring a lawyer can be costly and the costs will increase if you cannot come to a timely agreement.
  • By distancing yourself from the negotiation process, you may feel less ownership and control over the process.
  • Your lawyer is focused on achieving the best outcome for you, their client. You will need to be conscious of preserving your future relationship with your ex if you have children.

Option 6: Litigation

Litigation is when you go to court and a judge decides on the terms of your divorce settlement. This is considered the last resort when it comes to divorce pathways but is necessary if you are having trouble cooperating or one party is being unreasonable.


How does it work?

After you and your spouse engage lawyers, they will attempt to negotiate an out of court settlement. If you cannot come to an agreement, your issues will be submitted to family court to be resolved. You will both attend court where a judge will make a ruling.

Pros:

  • This may be the only way to get a fair outcome if your spouse is being uncooperative or unreasonable.
  • After months of fruitless negotiation, you are assured of an outcome.
  • If your relationship with your spouse is toxic or abusive, this process limits your face-to-face contact with them.

Cons (or things to note):

  • This is the most costly and time consuming method of getting divorced. It can take a big financial and emotional toll on you and your family.
  • You have less control of the outcome because you have handed over the decision-making to a third party.
  • If you think you’ll be vindicated by telling your story to a sympathetic judge, you will be disappointed. In reality, this doesn’t happen.
  • The adversarial nature of litigation will probably do significant long term damage to your relationship with your ex. This can be difficult, particularly if you have children.
  • Litigation is played out in public so you will need to reconcile the lack of privacy.

The pathway you choose plays a huge role in the outcome of your divorce. Choosing the right process for your family will not only protect your financial future, it will minimise the damage to your relationships – with your ex, your in-laws, your mutual friends and most importantly, your children.

Carefully consider whether saving money now by choosing a less expensive option will compromise your safety and long term goals. Often, it just isn’t worth it. Investing in professional advice and support makes the experience a lot less daunting and a lot more productive.

If you’d like to find out how we can support you before, during and after divorce, please view our divorce financial planning packages.

We can demystify the process and offer creative financial solutions that work for you and your family. If you’re ready to make an ending a great new beginning, please get in touch or book a complimentary 20-minute Connect Call.

A bit about me

It’s fair to say I’m not your traditional financial adviser.

While I have decades of experience in financial services, I believe in leading with compassion rather than a calculator. As the Managing Director of Jurson Advisory, I empower busy professionals to make smart decisions before, during and after divorce. With the support of an expert team, I resolve any complex money matters so you can take charge of your finances and grow more hopeful and excited about the future.

Prior to setting up Jurson Advisory in 2015, I enjoyed a successful career as a Director at Goldman Sachs JBWere and a Senior Investment Adviser at Macquarie Bank. My desire to combine expertise with empathy, led to me qualifying as a Certified Financial Transitionist® and pioneering a new approach to divorce financial planning in Australia.

When I’m not financially empowering people through their divorce, you’ll find me gardening and spending time with my family in the idyllic Macedon Ranges.

Learn More

Aynsley Jurson and her company, Jurson Advisory Pty Ltd (ABN 53 605 826560) are authorised representatives of Fitzpatricks Private Wealth Pty Ltd (ABN33 093 667 595), holder of an Australian Financial Services Licence (AFSL No.247 429).

The information is of a general nature only and does not take into account the objectives, financial situation or needs of any person. Before acting on the information, investors should consider its appropriateness having regard to their own objectives, financial situation and needs and obtain professional advice.

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