What options do you have to formalise your separation so that you can officially move forward? You need to choose the right option for you and at the right time. For me, once my ex made his intentions clear (he wanted to explore a future with someone else) I requested we begin discussions between each other prior to getting it all formalised legally. His actions alone made it clear that he was ready to formalise our separation so there was no reason to delay the inevitable.
We chose to see our respective lawyers and then discussed options and details. These 1-1 discussions took a few weeks to go back and forth with. We then to sat with our lawyers to write up what we agreed to and formalise them. To my surprise even though some of the discussions were very, very emotional due to the fact that I was still trying to process the fact that this was where life was now, we did get there. My ex and I peacefully agreed to keep family and other parties out of our negotiations and discussions, to ensure we were not being influenced. To my ex’s credit, he kept his word about keeping others out of his decision making and so did I.
We asked your questions to a family lawyer!:
So, for those of you that are new to separation, we asked Kirsty a family lawyer in our directory a few common questions to answer from her perspective based on her understanding (the responses below are provided Kirsty Salvestro as general information ONLY in Australian states relevant to today and with exception to Western Australia, please contact your lawyer related to your own situation.
Question 1: Approaches to consider
For a couple that “generally” agree on the terms of separation, what approaches can they consider to formalise separation.
Kirsty : There are quite a few ways parties can agree upon and then formalise any separation agreement.
The first option is what we commonly call the ‘kitchen table method” this involves the parties sitting together to reach an agreement and sorting out the finer details.
The second is to attend mediation. Mediation can be done either with or without lawyers. If however, the parties choose to use lawyers for support and advice during mediation, it does actually cost a little more as the parties will be paying for both a mediator and lawyer, but is very useful if the parties need support.
Thirdly, the parties can each go to a lawyer and enter into lawyer assisted negotiations. This in my experience will cost more and at times can also create a barrier between the parties.
Finally, a newer and what I would say is a more effective method is known as “Collaborative Practice”. This involves the parties engaging their lawyers and the parties, WITH their lawyers, work together as a team to reach an agreement and write it up together. In my experience this is the most cost effective, practical and even friendliest way to resolve a matter!
In all situations, once you have your agreement, you would then need to prepare a Binding Financial Agreement (BFA) or make an Application for Consent Orders.
You will need lawyers if you choose to write up a BFA. If you prepare Consent Orders you can write this up yourself but it is highly recommended you get advice and a lawyer prepares and advises you on the Consent Orders.
Question 2: Top Misconceptions
What are the top misconceptions about family law based on clients you have seen?
Kirsty : The most common misconception is the court is the best course of action to resolve a dispute. I strongly disagree with this. The first step for all parties should always be mediation. Mediation opens so many doors for people, it allows them to take control of their matter, they create their own options and solutions and it also helps build a new and better relationship with the other party. Importantly, it is much quicker and more cost effective.
Tip 3: Travel and your Ex..
If I want to travel interstate/internationally and I do not have any formal separation documents, what should one do?
Kirsty : If both parents consent to the child or children travelling, then there should be no issues. However, if agreement cannot be reached and one parent wishes to travel internationally, and the other parent does not consent to the issuance of a passport, then an Application can be made to the Family Court for an Order to issue a passport for the child. Both parties should always seek legal advice about this.
Tip 4: Top Tips
What are your tips to keeping the legal costs down?
- I would always say that maintaining a calm and friendly relationship is the most important tip. Work on your relationship with your ex and make this the most important thing for you and your kids. Avoid any bad or antagonising behaviour. When the parties are angry and confused, they act on emotion and make bad, and often costly decisions.
- Avoid long, hurtful, costly, legal correspondence! I avoid it at all costs. Look at all you your options for resolution. Mediation and Collaborative Practice being my top two pics. If you can use a mediator to reach your agreement rather than engaging two lawyers to send costly and hurtful letters back and forth to only end up in court, do so! If you are worried about just using a mediator get some independent advice or if you feel you need a lawyer to guide you through mediation, then look at suggesting collaborative practice. Just make sure you both instruct a collaboratively trained lawyer.
- Only go to court when you have exhausted all other avenues!
Disclaimer: The content of this blog is general information only and is not provided as a substitute for legal/professional advice. If you have a legal/financial/ any other issue, you should contact a lawyer and/or professional before making a decision about your options or personal situation. TheSeparationExchange.com cannot provide legal/professional advice.
Kirsty believes that there is a better way to resolve family law disputes and a better way to help families.
By moving away from litigious based solutions towards more client-led methods, we can save time, save money and perhaps even help people build a new relationship post-separation.
Here details can be found here!
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