To Court Or Not To Court

The 2014 divorce statistics continue to be staggering according to Australian Bureau of Statistics (ABS). It found that 46,498 individuals were granted divorce that year and divorces involving children represent a staggering 47% equating to 40,152 children affected (or 1.8 children per marriage). How many of these divorces went to court or were settled out of court, we will never be sure of.

Every couple, every divorce and every case is different. For some people, going through the court route is most appropriate and for others, negotiating out of court is best. Remember, if you go down the court path, you always have the option to settle out of court at any time. Similarly, you have the option to list or relist your case in court if agreeing out of court doesn’t work. Many Judges do look favourably on out-of-court or consent-by-agreement settlements.

Before you decide whether to court or not to court, consider the items listed below:

Reasons for going to court and having a Judge make the order:

  1. An independent person (the Judge) decides the outcome
  2. Feeling like you tried everything possible for a settlement
  3. “Buying” time (the court process is expensive and lengthy. For some people, buying time is a benefit and, for others, it is a financial drain)
  4. Distance from the other party (some people can’t be near or communicate freely with their ex-partner, therefore, communicating through lawyers creates a comfortable distance)

Reasons for settling out of court:

  1. Faster, more efficient settlement
  2. More cost effective (save money)
  3. Compromise, the two parties work together for an agreeable outcome
  4. Direct and open communication with the other part
  5. Collaborative Law or mediation often assists this process in lieu of a Judge

Sydney Morning Hearld Article, “Gridlock leaves families waiting three years for child custody to be resolved” (Aston & Ziaziaris, November 6, 2014) says that over 80,000 family law and custody matters are presented each year in the Family Court and Federal Circuit Court. The article also predicts that by 2017-2018, the length of time for a final hearing will a two to three year wait. With these pressures, it could be worth considering listing the divorce in a more regional court, where hearings can be listed in as little as two months. Don’t become despondent if there is a wait to have your case listed for a mention, there are many others in the same situation and the pressures don’t appear to be easing too soon.

Alternatively, you might like to seriously consider creating binding agreements through mediation or via collaborative law methods. Discuss with your Family Lawyer whether court is suitable for your case and if it isn’t, how it would be best to proceed.


This is general advice only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer and/or accountant before making a decision about what to do or applying to the Court. cannot provide legal advice. If you have an emergency situation, please contact Emergency '000'. © Divorce Pty Ltd