Parties are not always ready to dissolve their marriage legally by issuing divorce proceedings or there may be legal reasons why they cannot initiate divorce or judicial separation proceedings immediately. That does not prohibit them from taking steps to record how they wish to divide their finances, resolve children’s arrangements and/or agree on how their separation should be formalised in the future.
Confidante can help parties to agree and draft the terms of a Separation Agreement or deal with the interpretation and enforcement of an agreement already in place.
Yes, you can get prepared by drafting a Separation Agreement which is a really good way to record what should happen in the interim and can include;
i) how you intend to separate your finances;
ii) when and how you plan to get divorced;
iii) where the children are going to live or how they will divide their time and general arrangements in respect of them; and
iv) how you are going to meet the costs of the children.
A Separation Agreement can be as detailed or as brief as you like but the fuller it is, the less room there is for debate in the future.
A Separation Agreement is not final and binding and therefore it is not bullet proof (for example, one of the parties can try to move away from it at a later date). However, there are safeguards parties can put in place to make it as watertight as possible.
Speak to a lawyer and get advice around your options. Engaging a lawyer to help you draft a Separation Agreement is a good investment.
Separation is a less formal status hence entering into a Separation Agreement does not achieve finality and certainty (it is not final and binding).
Divorce means that the marriage is legally dissolved which happens when the Family Division grant the Decree Absolute (the final certificate in the divorce process which legally dissolves the marriage).
It is essential in divorce proceedings that the parties enter into a Consent Order which records the financial agreement reached between them (even if this means that the parties simply wish to record that they do not intend to make any claims against the other). The Consent Order needs to be approved by the Registrar of the Family Division (otherwise known as the Family Law Court) before it becomes binding (in a financial order, otherwise be known as a “divorce settlement” or “divorce agreement”).
It is very important to obtain legal advice from your divorce lawyer around the terms of the Consent Order which will ensure that, for example, future claims are dismissed if a clean break is the desired outcome.
It is absolutely possible to have an amicable divorce.
Divorce is stressful and emotions inevitably run high. However, maintaining good communication with your spouse is the key to a good relationship during and after divorce.
It is unlikely that you will agree on everything but ensuring a bigger picture view can help. The art of compromise is also key and focusing on what is really important.
If the dispute relates to the children, it is essential that each parent considers what most serves the children’s best interests. Depending upon their age, the children’s wishes may also be taken into account (although this should be dealt with very carefully and advice is recommended).
Other services can help too such as couples counselling and/or mediation. These services offer a forum for parties to discuss areas in dispute in the least acrimonious way. It is helpful to give real consideration to these services. Exhausting more cost effective options first is sensible.
Check out our Podcast series here for information on couples counselling, mediation and co-parenting.
If you are in the early stages of the process, you probably have a lot of questions and concerns and feel like you don’t know where to start. Be assured, this is totally normal.
Check out Checklist 1 which will help guide you through the practical steps you should be considering.
I know how daunting it can be to talk to a family / divorce lawyer and potentially commence a legal process relating to divorce, separation or your children.
If you would like to hear a little more about who we are, whether we would be a good match for you or when we can get started, get in touch and let’s start the conversation.