Australia: How to have an amicable divorce

Last Updated: 6 February 2019
Article by Hayder Shkara

An amicable divorce might seem like an oxymoron, but it does not have to be an unattainable myth.

Divorce can be thought of as inevitably full of animosity, but that is not true.

Relationship breakdowns are difficult, but working hard to have an amicable divorce is usually better for everybody.

Divorces rarely happen mutually.

The problem that tends to cause divorces to be quite antagonistic is that one person initiated the separation and the other person is understandably hurt, shocked and confused by it.

The divorce initiator has had more time to get used to the idea of breaking up while the other is still in a different mindset. Therefore, each party starts the separation and divorce process on a different level and hostility can easily build up.

Where there has been no particular event such as infidelity, emotional, physical or psychological abuse, or irresponsible financial activity to act as a catalyst for the relationship breakdown, it is better in the long run for couples to do their best to achieve an amicable divorce.

Sometimes relationships run their course and separating is the best option available.

As hard as it can be to limit the animosity and take emotion out the equation, vindictiveness in the divorce process is counterproductive.

Long-running legal disputes, in particular, can make the situation worse by increasing emotional stress and financial costs and by not allowing the parties to transition into a new part of their lives.

It is easier to become angrier and more frustrated as the process goes on, so trying to make sure the divorce goes for no longer than necessary is one important factor in an amicable divorce.

Focusing On The Future

A lot of what makes a divorce an amicable one is focusing on facts and knowledge, not emotion.

A marriage is a legal contract and a divorce is the dissolution of this contract; although emotions and memories are inherently tied up in both of these, using common sense and avoiding placing blame on each other often lead to a better outcome for everyone involved.

Minimising conflict and aiming for constructive arguments – such as making a conscious effort not to yell at each other – can help maintain a healthy atmosphere between the separating couple.

Focusing on the future can help with this.

The future is what divorce is about: hopefully moving towards a happier time, no longer in a relationship that was not working.

Instead of concentrating on what you want in the property settlement, it is more productive to focus on what is needed to be happy later on and to cut any losses.

Realistic expectations are similarly very important.

When a couple divorces, the parties are unlikely to enjoy the same standard of living as they did while in a relationship.

There are many factors that affect the result of a property settlement, there is no set rule that can predict what will happen for any given couple.

Being aware of the value of assets and debts helps maintain a focus on facts and develop a more rational approach.

If the dispute goes to court, the court will consider each party's earning ability, financial needs, contributions to the household and family, age and health, and the welfare of any children of the relationship.

Reading legal information can definitely help, but it cannot replace face-to-face legal advice from a lawyer. A family lawyer can give legal advice specific to a person's individual situation and help them develop a clearer idea of what they can expect.

However, it is true that most people do not want to have to go to court.

If agreements can be made, either solely between the two parties or with the help of a mediator or family dispute resolution practitioner, the parties can file for consent orders in court to make the decisions official.

Making The Divorce Easier For Children

Aside from the couple, the people most affected by a divorce – an amicable divorce or any other kind – are the children of the relationship.

A bitter, high-conflict divorce is especially harmful to children, who are unlikely to fully understand the situation and who may feel confused, angry, saddened, lost and stressed.

Keeping the best interests of the children in mind is the most productive and most beneficial way to move forward.

Fighting in front of the children, insulting the other party in front of them or using them as go-betweens will only increase the difficulty and hostility of the divorce.

Focusing on the children helps each person focus on the future: how can they ensure the future happiness of the children?

A couple may or may not initially agree on the arrangements for the children.

These arrangements include custody, communication, child maintenance or the division of costs, maintaining relationships between the children, their grandparents and other extended family members, how to make arrangements for holidays and special occasions, and even more long-term decisions such as where the child will attend primary or high school.

It can take a lot of effort to uphold the principles of a respectful, amicable divorce when no quick or easy agreement can be made.

Alternative dispute resolution that allows the parties to hold onto the control of their situation but with the added assistance of a mediator or facilitator can be very effective.

Family dispute resolution is compulsory before beginning the court process for parenting orders.

Coming to a decision together can alleviate bad feelings in the future.

If the parenting matter does go to court, concentrating on the best interests of the children is what will help each party aim for an amicable divorce.

The court does not seek to establish fault or place blame, but to understand the situation and act in a way they feel is best for the future of the children.

The now ex-spouses can concentrate on their future as co-parents, helping their children through the process of their parents splitting up.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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