Alternatives to court
Most Australians do not need to go to a family law court to make arrangements for children and parenting or dividing property after their relationship ends.
While a divorce order must be obtained through the court, there is no need for parenting and financial arrangements to be decided by a court, except where the former partners cannot agree.
The majority of Australians whose relationships break down find that they are able to make arrangements for children and property themselves, or with some help from family mediators and Family Dispute Resolution providers.
Separating families are encouraged to come to their own arrangements for children and property themselves without going to court. These can be formal or informal arrangements.
Going to court to resolve disputes is very expensive, time consuming and stressful. You may also not get the result you want. There are different pathways other than courts that separating families can take, depending on their needs and personal situations.
- Parenting – how to make arrangements without going to court
- Family Dispute Resolution
- Money and Property – how to make arrangements without going to court
- Related links
- Next steps
Parenting – how to make arrangements without going to court
If you are no longer in a relationship with your child’s other parent, it’s best for everyone if you are able to make an agreement with them about how your children will be cared for. Protracted conflict about their care can be harmful for children.
Once you have agreed on how the children’s needs can be met, you can:
- make an informal oral parenting agreement
- make a written parenting plan
- get a consent order from the court
Family Dispute Resolution
Family Dispute Resolution (FDR) is a special type of mediation to help separating families to come to their own agreements with professional assistance from an accredited Family Dispute Resolution Practitioner.
Australian family law makes it compulsory to attempt Family Dispute Resolution (mediation) before filing in court for parenting orders, unless filing consent orders or one of the exemptions applies.
To find a Family Dispute Resolution provider, use find Local Help, call the Family Relationship Advice Line or use the Register of Family Dispute Resolution Practitioners.
Money and property – how to make arrangements without going to court
Former partners are encouraged to agree on arrangements for their property without going to court. Going to court to solve disputes with your ex-partner about how to divide property is expensive, can take a long time, and in the end may not give you the result you want.
The family law courts require people applying for property settlements to make a genuine effort to resolve their matter before filing their application. You may attend Family Dispute Resolution, another mediation service, or try to resolve your matter with the help of a lawyer.
Even if you plan to work out how to divide your property without going to court, it is important that you seek legal advice.
If you can agree on how to divide your property, you can:
Informal agreements can be made without the help of a lawyer. However, they are not enforceable by a court, which means that you may end up having to go to court in the future if you or your former partner wants to ask for another property settlement. It may make more sense to make a financial agreement or have consent orders made.
A financial agreement is a written document that states how your property is to be divided. It can be made before, during or at the end of your relationship. It does not have to be approved by a court, but there are strict rules about financial agreements. You must obtain legal advice if you want to make a financial agreement.
A consent order is a written agreement that is approved by the court. When a consent order is made, it has the same effect as a court order made after a hearing.
Before approving the agreement, the court will consider whether the agreement is fair for everyone.
Applications for consent orders must be filed in the Family Court of Australia, or if you are in Western Australia, the Family Court of Western Australia.
More information about how to get a consent order to divide property by agreement is available from the Family Court of Australia.
Consent orders can be drafted by a lawyer – seek Legal Advice.
You can also apply for consent orders yourself using the Family Court of Australia Consent Orders Kit (Do It Yourself kit), or you can file electronically (eFile) through the Commonwealth Courts Portal.
Ann and Graham have separated after being together 13 years – 3 years as a defacto couple and 10 years married. They have two daughters aged 11 and 9. They own a house in both names, and have similar amounts of superannuation in their own names. They decide that the girls will live with them both, on a week by week basis. They agree that instead of going to court, they will sell the house and split the proceeds equally, with each keeping the superannuation in their own names. Both Ann and Graham seek legal advice, and their lawyers draft consent orders on this basis which are filed in court.
Consider the benefits in making your own parenting agreement and/or financial agreement with your former partner.
Seek independent legal advice.