A message from Leanne Abela & Joseph Schepis.
Often when people speak about “divorce cases”, they are referring to legal family matters addressed from separation to divorce to children’s matters (if applicable) to property settlement, dealt with in family court proceedings, and pursuant to the Family Law Act 1975 (Cth).
There is no crystal ball that can provide an answer to how long your family court proceedings will take. The answer depends on a variety of factors including what course of action you choose in resolving your matter; whether your estranged spouse is cooperative or looking to make things difficult; and sadly, but truthfully, how much money you have to proceed down the road of litigation.
This article will provide a guide to how long it takes for a) a divorce application to finalise; b) a property settlement to be reached; and c) children’s matters to resolve, and will discuss options that are available for you to accelerate a resolution of your matter.
Unfortunately, there is no short-cut to finalising your divorce. Certain eligibility requirements are required to be fulfilled, namely:
Once the above requirements have been met, a divorce application can be prepared and filed. If the process is handled efficiently, it generally takes three to four months from the date of filing your application for divorce with the court, until the divorce is granted. It then takes one month and one day after orders are made for your divorce to be made final. So, assuming everything goes smoothly, the average duration of time from separation until a divorce is finalised will be approximately 17 months.
However, sometimes there are difficulties in serving your spouse with the divorce application, either because their address cannot be ascertained or they are refusing to accept service, in which case a process of substituted service would need to be performed, causing further expense and delay. In other cases, the court may not be satisfied with certain aspects of your application, for example, the arrangements you say you have made for your children, or if you have met the 12 month separation requirement.
For more detailed information on the steps involved in making an application for divorce, and how long it is likely to take in the circumstances of your case, drop into our office for a free 30 minute consultation.
B) Reaching a property settlement
The divorce is the formal legal end of the parties’ union, and so is only one part of the legal process when a marriage breaks down. Nearly all divorcing couples also need to settle on matrimonial property. This can occur as soon as a couple separates (or in rare circumstances before) and end before their divorce is finalised. It is important to note that divorcing couples must commence proceedings for property settlement within 12 months of the date of the divorce order. Accordingly, it is advisable to do so as soon as you separate.
The best outcome for any divorcing couple looking to reach a property settlement quickly is to successfully negotiate their own mutually acceptable property agreement without having to go through the adversarial court process. This can be done either through the drafting and execution of a Binding Financial Agreement (“BFA”) or through the making of Consent Orders by the court.
If agreement cannot be reached outside of the courtroom, a trial will need to be conducted and a court ordered property settlement made.
Irrespective of how your property matter settles, on average, the wealth re-allocation process following settlement takes between two years, or for the wealthier, up to four years.
A BFA sets out all agreed assets and liabilities of the marriage; any financial resources of the parties; and how your former spouse and you will divide up your property. We recommend you seek legal advice about whether executing a BFA would be in your best interests and, if it is, that you get a lawyer to negotiate with the other side and prepare one if necessary. Both parties must obtain independent legal advice prior to executing a BFA and certificates must be produced to this effect before it can be made enforceable.
Consent Orders, or “Minutes of Consent”, provide written details of what orders are sought by the parties in relation to their property and can be prepared by the parties themselves or by a lawyer representing either of them. The orders contained in the Minutes must be accepted by all parties and approved by a Registrar or Judge of the Federal Circuit Court of Australia or Family Court of Australia.
Attached to the “Minutes” is the Application for Consent Orders, which contains detailed personal and financial information about the parties such as disclosure of all assets and their values and the proposed division of property and any other relevant information which the court must consider when deciding whether to make a property settlement order in accordance with the agreement reached. The Application can be prepared by the parties themselves or by a lawyer representing either of them.
So, contrary to a BFA, a court, not merely the parties, must approve the proposed orders by considering whether the proposed division of property is just and equitable in all the circumstances. This means that even if both parties agree to a proposed division of property, a court might decide the agreement gives an unfair adjustment of property to one party vs. the other and refuse to make the orders. Accordingly, if you believe your former spouse is being overly generous in their proposal for a property division, whether because they are feeling guilty or looking to get “rid of you” quickly or “buy you out” so to speak, you may wish to enter into a BFA with them rather than make an Application for Consent Orders.
However, it is important to note that BFA’s are more vulnerable to being set aside by the court than Consent Orders are. A BFA may fail simply because it was not validly created in the first place. It may also be set aside if a court finds that the agreement was obtained by fraud; it operates impractically; it is uncertain or incomplete; there was insufficient disclosure by one of the parties or both of them; the party’s circumstances have changed significantly since the signing of the agreement (e.g. continuing care of children, hardship, etc.); there was a level of unconscionable conduct, duress or undue influence involved in the execution of it; and more. Conversely, an order made by the court is meant to operate between the parties indefinitely. The only instances where Minutes of Consent can be set aside by the court is where there has been a significant change in either of both of the parties’ circumstances which they could not have predicted; there has been a miscarriage of justice or one of the parties has been fraudulent (e.g. in their duty of disclosure); it would be unjust for the orders to remain in force; or some of the property dealt with are later discovered to be the proceeds of crime.
The costs of preparing and executing a BFA or having Consent Orders made by the court will vary depending on the level of disclosure required and correspondences sent between the parties, but choosing to settle on either option will almost certainly be more affordable than having a decision imposed on you by a court. Further, negotiating a property settlement outside of court allows you to be part of the negotiating process rather than having a decision imposed on you by a court, and can provide a speedy resolution, averaging from one to three months, depending on the length of negotiations. Also, if there are children of the marriage, there is likely to be less emotional toll or impact on them if your former spouse and you decide to settle outside of court.
Unfortunately, there are divorcing couples who cannot agree on any proposed division of property, either because one of them is refusing to participate in any discussion or dispute resolution with the other, or because they don’t agree even after lawyer-assisted negotiations and other methods of dispute-resolution have been conducted.
The option of last resort it to obtain a court ordered property settlement. This is inevitably a costly process and it is likely to lower the value of the property pool, if settlement is not reached in the early stages of court proceedings. It can also take up to two years to obtain a final court ordered property settlement given the court process (e.g. the requirement to attend mediation before final hearing); the high volume of cases being heard in the Family Courts; and subsequent time delays (i.e. waiting until your next court date).
Sometimes, this option is unavoidable, particularly if there is an urgent need to protect property that your former spouse may be trying to hide, sell or give away to friendly third parties.
To find out more about what options are available for you to reach a property settlement with your estranged spouse, and how you go about them, come and speak to one of our experienced lawyers during a free 30 minute consultation.
C) Children’s matters
Following separation, many parents are able to reach agreement between themselves with regards to arrangements for the care of their children. The family law system encourages separating parents to work out arrangements for children between themselves without going to court.
For many divorcing couples, non-binding parenting plans are sufficient. These are a mutually consensual and voluntary written agreement that covers the day to day responsibilities of each parent, the practical considerations of a child’s daily life, as well as how parents will agree and consult on important long-term issues about their children. A parenting plan can include various things such as how the parents will share parental responsibility and consult about decisions (e.g. which school the child will attend); who the child will live with; what time the child will spend with each parent; how the child with communicate with each parent or other people (e.g. by phone); and what processes can be used to change the plan or resolve any disagreements about the plan.
Parenting plans can be drafted and executed by the parties themselves or by a lawyer representing either of the parties immediately following separation. They can also be changed at any time as long as both parents agree, and third parties, such as grandparents or step-parents, can also be included in a parenting plan. Parents can also ask the court to make an order in terms of the parenting plan, and therefore bind its terms, and this can be done within a matter of weeks from applying to the court for such an order.
However, if there are disputes about post-separation parenting arrangements, divorcing couples will need to go to greater lengths than entering into a parenting plan to effectively resolve their disputes.
Commonly, this involves attending a Family Dispute Resolution service for mediation, where a parenting plan can be drafted with the assistance of a mediator, or otherwise engaging a lawyer to negotiate on their behalf in anticipation of reaching a settlement. Either process can take anywhere between one to three months or longer if, for example, medical evidence including psychologists reports are required before settlement can be reached, or if negotiations are drawn-out because of certain complexities, such as where one parent is wanting to relocate to another city, state or country and requires the consent of the other parent to do so whilst negotiating on arrangements in place for the child or children to spend time with them.
If the parties still cannot resolve their disputes through negotiations and mediation, or family violence makes Family Dispute Resolution inappropriate, an application to the Family Court of Australia or Federal Circuit Court of Australia for parenting orders may be necessary.
As in property proceedings, parties will have the option following the making of such an application to resolve their disputes outside of the courtroom and enter into Consent Orders.
However, again, like in property proceedings, if the matter proceeds down the road of litigation and no settlement is reached outside of court, it can take as long as two years to obtain a final court ordered parenting settlement due to the time it takes to gather certain evidence; the systems and procedures of the court system; the volume of cases being heard in it; the parties being high-conflict parents who cannot reach agreement and need a decision of the court; and/ or the individual needs of individual children who mature with time and of whom different arrangements need to be considered over a time frame beneficial to children.
At Pearsons Lawyers we understand that each family is different and therefore the most appropriate parenting arrangements will also be different. Pearsons are the expert family lawyers in Melbourne. We can assist you in all aspects of your parenting disputes, and can advise you of what options are available for you moving forward in a free 30 minute consultation with one of our experienced lawyers.