The divorce process -  when I do becomes I don’t

The divorce process - when I do becomes I don’t

By Angie Todd

In 2015 there were 48,517 divorces granted in Australia compared to 113,595 marriages.  This means that about one in every two couples in Australia who say ‘I do’ eventually say ‘I don’t’.


Most couples who face the unnerving prospect of divorce have limited knowledge of how the process will apply to their circumstances, their children, their finances, or the cost of a divorce.  


Many will quickly turn to the internet to read about the legal aspects of divorce and talk with friends and family who may have experienced divorce.  This is an important step in understanding the process but as each case is as unique as the parties involved, it should not be a substitute for legal advice.


This is particularly so when a divorce, for most people, is a once-in-a-lifetime event.  If a couple has married young, have had children, built up their careers and accumulated all of their wealth during the marriage, it is unlikely those stages will be repeated in the next chapter of their lives. 


That means it’s all the more important to ensure the financial outcome of the divorce is just and equitable and, where suitable, each party is able to have a meaningful relationship with the children. 


If this can happen then it sets the foundation for each of the spouses to move forward with their lives and be financially stable.  Like it or not, the Court will not facilitate either of the spouses taking the other ‘to the cleaners’.


That said, the process is never easy for anyone going through it, regardless of whether the case is slowly moving through the courts or even for a couple in mediation, arbitration or collaborative practice. 


The initial financial questions most couples want answered include whether they can keep the house, and will their divorce settlement include assets held by a family trust, an inheritance they may have received or the superannuation that has been built up in their respective careers 


Another cause for concern for many couples is the degree of suspicion and bitterness each may hold for the other, and when it comes to the finances, such mistrust can lead to accusations of hidden assets or income. 


In all cases, financial disclosure is an integral part of the process and once this has been made by each party it provides the foundation for settlement negotiations. 


At this point the couple may decide to attend mediation or arbitration.  In only a small number of cases matters can’t be resolved in one of these ways and the case will proceed with litigation. 


Sometimes this is because there is a complex issue at law or sometimes it’s simply the personality of one or both of the parties that means the case can’t be resolved amicably. 


Litigation means the Judge has the power to exercise discretion regarding how much weight is placed on the various factors that present in each case, which ultimately determines the outcome. 


For this reason, and for cost reasons, most people wish to avoid litigation and retain control over the result.


Divorce lawyers and other trained professionals such as mediators work with couples throughout the divorce process and in formalising the settlement so that each party’s rights and obligations are clearly defined, enabling the former spouses to move forward with certainty and stability.

Angie Todd

Angie Todd is Special Counsel with Barry Nilsson Lawyers, specialising in Family Law. She is dual qualified to practice in Australia and in Hong Kong SAR. Angie’s legal commentary has been featured in the Australian.

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