“We’ve separated, we’re amicable and we’ve reached an agreement between ourselves.” At Martens Legal, this is what we love to hear!
This post sets out:
– some examples of what we consider to be amicable separations;
– the benefits of amicable separations;
– when and why you should involve lawyers; and
– the next steps for those going through separation who want it to be amicable.
What is an Amicable Separation?
People don’t often hear about amicable separations because – let’s be honest – they really aren’t that interesting. But, in reality, many of the separated couples that we help are in fact amicable.
Growing apart and separating doesn’t automatically mean you must dislike the other person. We see many clients who still have a great relationship with their ex and, in many situations, remain good friends.
An amicable separation can also include circumstances where you may not like the other person or agree with them, but you are still able to effectively talk to each other about parenting issues and how you are going to divide the relationship assets.
If the above examples sound like you, you are going through an amicable separation.
Benefits Of Reaching An Agreement Without Using Lawyers
Before starting the conversation with your ex about reaching an agreement, you should seek initial advice from an experienced family lawyer to get an idea of how family law works, what you are both entitled to and what obligations and rights you each have.
Why? Because you don’t know what you don’t know.
Without receiving initial advice, you are effectively entering the conversation blind. In our experience, this can seriously impact your chances of reaching a fair and friendly agreement with your ex.
Once you have received the initial advice, we would usually recommend that you take the information away, discuss it with your ex and attempt to reach an agreement between the two of you. Of course, this is only if you feel comfortable doing so.
If you can reach an agreement by communicating directly with your ex, this will not only save you a significant amount in legal fees but, in our experience, will also benefit the relationship you will have with each other moving into the next chapter of your lives.
If you don’t feel comfortable talking to your ex about these issues, or if one of you isn’t willing to get involved in the conversation, we recommend involving a lawyer.
Should We Involve Lawyers If We’re Amicable?
So, you’ve been able to reach an agreement with your ex, what’s next? Do you need to involve lawyers?
Once an agreement has been reached, you should legally formalise this agreement in what’s called ‘Consent Orders’. We always recommend that you engage a lawyer at this point to prepare the documentation. Too many times we have seen the negative consequences of people trying to do it themselves.
Family lawyers can’t act for both you and your former partner; so, you may decide that only one of you will engage a lawyer to prepare the legal documents, or you might both engage a lawyer of your own to ensure that everything is covered and your interests are protected. Both of these options are completely fine and it is ultimately a decision for the two of you to make.
Benefits Of Consent Orders
Engaging a lawyer to formalise your agreement in Consent Orders has many benefits, which include:
Formalising your agreement in Consent Orders can save you significant amounts in unnecessary tax. For example, where property is being transferred from one person to the other, there are laws in place that exempt you from paying transfer or stamp duty. However, this is only if the agreement is properly formalised. For more information on the tax benefits of Consent Orders see our earlier post “How to Avoid Unnecessary Tax in a Property Settlement”.
Once the Consent Orders are approved by the Court, they are legally binding. This means that you are both bound to follow the orders and there are consequences for non-compliance.
Consent Orders mean finality.
Except in very limited circumstances, neither of you can come back at a later point and seek a bigger piece of the pie or try to change the agreement.
Should We Formalise Parenting Matters?
Although you and your ex may be able to agree on what’s to happen with the care of the children today, this may change in the future.
By formalising parenting matters in the Consent Orders, you can essentially do what you like so long as you both agree to it. But, if you can’t agree at a later point, then you can look to the Consent Orders for clarity. This can help put out the fire if things start to get heated.
If you don’t want to formalise parenting arrangements in Consent Orders, we do recommend that you at least document your agreement in a Parenting Plan. See our earlier post for information on the difference between a Parenting Order and a Parenting Plan.
Family law doesn’t have to be all doom and gloom, despite the horror stories we often hear at backyard BBQs. At Martens Legal we aim to keep things as simple, conflict free and amicable as possible.
Would You Like Further Information?
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. You should seek appropriate professional advice based on your particular circumstances.