Anyone going through a divorce or separation can apply to the Family Court to have their dispute resolved.
The process
The Family Court seeks to resolve legal disputes between individuals regarding divorce, financial claims and child arrangements in separation or divorce. The process varies according to the nature of the problem.
Getting divorced
To obtain a divorce or dissolution, one of the parties must submit a petition to the court. The judge will consider the petition and dissolve the relationship by means of a decree nisi, followed by a decree absolute, or a conditional order, followed by a final order (as the case may be). It is very rare for a petition to be contested, as long as it is carefully drafted.
Financial claims
In pecuniary actions, the court seeks to issue the financial order it considers fairest, taking into account all the circumstances of the case. It has a wide range of powers. Before the court can distribute the resources, it must calculate what they are and so most financial claims involve detailed disclosure and valuation exercises so that the court can allocate.
Children's arrangements
In cases involving children, the court will seek to issue an order that best promotes the welfare of the child who is the subject of the application.
In all types of case, the court will encourage settlement wherever possible, but ultimately, if the parties cannot reach an agreement, the court will decide for them. Some applications can be relatively simple to determine because they involve separate issues, but others can be very complex and can take months to determine.
Suitable circumstances
The certainty and finality of a court case is appropriate for many circumstances, but it is not necessarily the most proportionate use of time and money.
Family Court decisions are highly discretionary and different judges can have different points of view, making the results unpredictable.
The impact of contested court cases can be long-lasting. People often find court proceedings expensive, stressful and difficult. However, there are circumstances in which court should be your first port of call. For example, if you suspect:
- risk of harm to a child in child proceedings
- the other party is dissipating assets in financial processes or adopting an unreasonable approach to disclosure or negotiations
- the risk that the other party may initiate divorce and/or financial proceedings in another less advantageous country.
If it is necessary to seek the court's intervention, it is often possible to limit the court's involvement to matters where you require a judge's opinion. For example, you can require the court to grant orders to secure assets or provide an indication of the likely outcome in financial proceedings, but subsequently negotiate or mediate the remaining issues.
Initiating court proceedings does not mean that the court has to decide all the issues between the spouses. Court proceedings can, in fact, sometimes be a useful backdrop and provide a timeline for other forms of dispute resolution.
Benefits
- Finality - the parties can usually achieve finality. For the same reason, disputes resolved using other methods, such as mediation and arbitration, generally need the Family Court's seal of approval to become final and binding.
- Certainty - separating couples are certain to make decisions based on the outcome.
- Enforceability - for the same reason, disputes resolved using other methods usually require an order to ensure that agreements can be more easily enforced.
- Precedential value - sometimes a party can point to a judgment or court order to use as a precedent to strengthen its position in subsequent proceedings.
- A set schedule - it can often help people resolve their disputes using other methods, knowing that the court schedule is running in the background.
Our vision
The Family Court has unparalleled experience in dealing with family matters and addressing international family law issues.
The intervention of a Family Court judge can provide an important impetus for the parties to negotiate a settlement, especially when they get stuck in negotiations and are unable to make progress.
The neutrality and fairness of a Family Court judge can also help the parties accept the outcome and conclude matters, allowing the parties to move on in life.
