Key points
This case in 30 seconds
- Situation
- The couple had lived apart for more than a year before applying. They have one child under 18 and at first could not agree on where the child lives, caring time and access.
- Approach
- After discussing through family mediation, they agreed on the arrangements for the child and then proceeded by joint application.
- Result
- They obtained the Certificate of Decree Absolute and the marriage was formally dissolved; the arrangements for the child’s care and access are set out in the agreement.
Three things that made the case go smoothly
- Discuss through family mediation, reaching agreement in confidence.
- A joint application does not need to be served on the other party and goes straight to being listed.
- A statement on the arrangements for the child is prepared together, so the court understands the arrangements.
Background
The clients in this case are a married couple who, after living apart for some time, both agreed to end the marriage.
They have one child under 18 and at first could not agree on where the child lives, caring time and access.
Both wanted to handle it in the way that affected the child least, but they saw the arrangements differently and could not settle for the moment.
Their worries were mainly about the procedure itself:
- Not sure whether they could still apply jointly while disagreeing
- Worried that once papers were filed it would turn into a long dispute
- Not knowing how the court would consider the child’s wishes
They had searched online themselves, but different websites said different things, and they were not sure whether to negotiate first or file first.
At the first consultation, each described their worries: one worried that moving out would disrupt the child’s routine, the other that access time would be too little.
Before formally filing, they wanted a place to say what they thought clearly, rather than going to court from the start.
Since both wanted to put the child first, the first decision was how to deal with the disagreement.
Why choose mediation first?
This case chose mediation first because the two disagreed over the arrangements for the child but were both willing to talk.
What is family mediation?
Family mediation is for couples who are separating and going through divorce. It helps them reach an agreement acceptable to both on future arrangements for the children and finances.
People can decide for themselves whether to try family mediation. A trained, neutral mediator helps both sides communicate and negotiate in confidence.
If things are not fully settled, you can first write down what you have agreed, then list what is unsettled and discuss common approaches; family mediation can be suggested where needed.
What is said in family mediation is confidential; if you cannot agree, it does not affect later applications.
The court listens to children’s views on whom they wish to live with, according to their age and understanding; the older the child, the more weight their wishes carry.
Both parents share custody and decide major matters such as education, medical care and religion together; care and control usually goes to the parent the child mainly lives with.
After mediation, why choose a joint application?
| Joint application | Sole petition | |
|---|---|---|
| How it is filed | Both sides file together | One side files |
| Serving your spouse | Not required | The petition must be served on the spouse |
| A child under 18 | Custody and access arrangements must be put forward together | Must also be put forward together |
| Applying for the decree absolute | Form 5A | Form 5 |
For a full comparison of the two routes, see “divorce by agreement versus applying alone”; for the six factors the court considers on arrangements for children, see “Child custody”.
Once agreement is reached through mediation, the procedure is the same as in “the case of divorce by agreement (joint application)”.
For a joint application, both applicants must show that they lived apart for at least one continuous year before applying for divorce.
A joint application does not need to be served on the other party and goes straight to being listed; a petition by one side must be served on the spouse.
What documents and fees do you need to prepare?
Where the family has a child under 18, the divorce petition or joint application must include proposals for custody and access arrangements for the child.
Both sides to a joint application must also file a statement on the arrangements for children (Form 2D).
Cases involving arrangements for children are quoted per case.
Once it is settled that you will proceed by joint application and the documents are listed, what remains is knowing the timing of each stage.
How we helped
From the first consultation to the Certificate of Decree Absolute, the same dedicated consultant follows your case. Our help falls into three stages.
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Preparation and mediation
From the first consultation
At the first consultation, the dedicated consultant first looks at where the two disagree over the arrangements for the child and explains how family mediation can help.
We help gather information on the child’s residence, school and caring time, so both sides have concrete proposals to discuss in mediation.
Mediation is led by a neutral mediator; we first help the couple clarify what each cares about most.
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Filing and listing
About 50 days from listing to hearing
Once agreement is reached, we help draft the joint application and prepare the statement on the arrangements for the child.
When the documents are ready, we help both sides file together, with no separate service to arrange.
For an undefended case, the wait from listing to hearing is about 50 days.
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Decree stage
6 weeks after the decree nisi
After the court makes the decree nisi, we explain to both sides what it says and its limits.
Once the waiting period had passed, we prepared and filed the documents to make the decree nisi absolute.
6 weeks after the decree nisi is made, the notice of application for the decree nisi to be made absolute can be filed; use Form 5 for a petition by one side and Form 5A for a joint application.
Throughout, the client could phone the dedicated consultant at any time, in Cantonese, Mandarin or English.
We explained every court letter first, and what needed following up.
We are a divorce consultancy. We help you organise information, prepare documents and understand the procedure. If your case needs legal advice or a representative in court, we will tell you honestly and help you make other arrangements.
With the three stages joined up, this was the outcome.
Outcome
They eventually obtained the Certificate of Decree Absolute and the marriage was formally dissolved; through family mediation, the two agreed on the arrangements for the child.
Because the two had reached agreement through mediation before filing, the joint application that followed was the same as in an ordinary case, with no dispute to deal with.
For the child, the biggest difference was that the parents did not have to argue opposing positions in court; with the agreement written down, they can still discuss adjustments with each other later if needed.
Throughout, the dedicated consultant drew up the documents from what both sides had agreed and flagged details still to be settled, reducing omissions found only after filing.
She said that without mediation first, it might have taken longer and more arguments to reach the same agreement.
The two now live by the care and access schedule set out in the agreement. The child’s routine has not changed much, which was what they cared about most at the start.
How does the procedure change if your situation is different?
The procedure in this case followed from the two reaching agreement through mediation. If your situation is different, the procedure will change too.
Mediation did not fully reach agreement: if some points remain unsettled, you can first write down what you have agreed and discuss the rest separately.
Switching to a petition by one side: one side files a petition alone and arranges for it to be served on the other.
Child’s wishes: the court gives more weight to the wishes of older children.
Three things you can do first in a similar situation
- First gather information on the child’s residence, school and caring time.
- Remember that what is said in family mediation is confidential, and failing to agree does not affect later applications.
- Prepare the marriage certificate and both sides’ identity documents.
FAQ
What is family mediation?
Family mediation is for couples who are separating and going through divorce. It helps them reach an agreement acceptable to both on future arrangements for the children and finances.
Is mediation confidential?
People can decide for themselves whether to try family mediation. A trained, neutral mediator helps both sides communicate and negotiate in confidence.
Is mediation compulsory?
If things are not fully settled, you can first write down what you have agreed, then list what is unsettled and discuss common approaches; family mediation can be suggested where needed.
How does the court decide arrangements for children?
The court listens to children’s views on whom they wish to live with, according to their age and understanding; the older the child, the more weight their wishes carry.
After mediation, what conditions must be met to proceed by joint application?
For a joint application, both applicants must show that they lived apart for at least one continuous year before applying for divorce.
With children, what extra documents does a joint application need?
Both sides to a joint application must also file a statement on the arrangements for children (Form 2D).
If mediation fails, what else can be done?
What is said in family mediation is confidential; if you cannot agree, it does not affect later applications.
How are fees calculated for this kind of case?
Cases involving arrangements for children are quoted per case.
After a joint application, how long until the decree absolute?
6 weeks after the decree nisi is made, the notice of application for the decree nisi to be made absolute can be filed; use Form 5 for a petition by one side and Form 5A for a joint application.
Illustrative case: this page is adapted from similar cases we have handled. The people and details have been changed, and it is not a record of an identifiable client.
Every case is different, and the time taken and the result will vary. This page is general information only. It is not legal advice and is not a promise about your case.
