Getting it Settled

Negotiating a settlement

If possible, it is best to stay out of court and to sort things out between you. Negotiating a settlement with your former partner that both of you can live with is likely to save you a lot of money, time and stress. Settling will be quicker, easier, cheaper and probably get you closer to what you want than a court decision will.

If you and your former partner are already in agreement, or are close to reaching an agreement, lawyers can help you get settlements done in a legal way without going to court.

If you think you could reach an agreement but emotions are running high or there are a few things that you can’t figure out together, you may wish to consider mediation or engaging a lawyer to help you find new ways of resolving the situation.

Even if you go to court you can still decide to come to an agreement with your former partner. This can be done even in the middle of a trial, although obviously, earlier is better (and thousands of dollars cheaper).

Getting matters settled by negotiated agreement is almost always in everybody’s best interests. It may be hard (as emotions are raw after a separation) but, if it can be achieved, the outcome is likely to be much better than the alternatives.

This raises two important questions:

  • Why should you seek to settle by negotiated agreement?
  • How can you achieve that agreement?

Why try to settle?

A negotiated agreement has many advantages:

  • It gives you finality and certainty. You can then get on with your life knowing what your financial future is likely to be and what arrangements are in place for the kids.
  • It minimises the risks of the court processes. No lawyer can promise you what result they will achieve at the end of the process – there are too many unknowns.
  • Kids will not have to live with the ongoing tensions of a court battle (even if it’s not about them).
  • Family and close friends will not get dragged into an ongoing battle.
  • Resolution will be much quicker. Going through the court system can take years (although many matters are resolved earlier).
  • It will definitely be much less expensive. Lawyers normally charge by the amount of time they spend on your matter, not by the results they achieve. So, the longer your matter goes on, the more it will cost.
  • Starting litigation means you are handing over decisions on important financial and children’s issues to somebody else – namely, the Judge. You therefore no longer have any control over the outcome.
  • The legal costs saved by early compromise may more than compensate for the amount that you ‘gave away’.
  • In children’s matters, a reasonable compromise may well mean that the arrangements work more smoothly for everyone – even though you may have less time with the children than you originally wanted.

How to settle

The chart below shows how the steps to a final agreed settlement might proceed.

  • After separation you negotiate a settlement.
  • Successful negotiation leads to an Agreement (Financial or Child Support) or to   Consent Orders (financial and children’s matters).
  • These are then ‘registered’ in the Family Courts (or exclude the courts from becoming involved)
  • The matter is finalised.

 

 

 

 

 

 

 

 

 

What are Consent Orders?

A Consent Order is a written agreement that is approved by a Registrar of the Court, provided it is considered to be a fair and appropriate agreement.

 

The relevant agreement is drafted in legal terms and signed by the parties. The application is then sent to the court for approval. Once approved, the court will formally make the agreement an Order of the Court. This means that the agreement becomes legally binding and the court can impose penalties if one or both of the parties refuses to follow the order.

If agreement has been reached about all issues and the agreement is fair obtaining Consent Orders is usually a straightforward process.

Family Law

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