“Do it yourself divorce” – How to apply for your own divorce
Do you want a do it yourself divorce? You can do your own divorce application – as a sole applicant or as a joint applicant together with your ex. A “do it yourself” divorce is easier than you think and is now made even easier with the Court’s online service. There are different obligations for a sole and a joint application, so decide which option suits your situation first.
There are three separate and sometimes interrelated legal issues married couples must resolve when they separate which are: dividing their property between them; putting in place arrangements for parenting of their children; and getting a divorce.
A lot of people come to a lawyer and ask about getting a divorce when what they really want to know is how to divide their marriage property and/or put in place arrangements (or if necessary, court orders) regarding who the children live with and what time they spend with the other parent. These are often the most important issues for people to resolve after separation but sorting out property and parenting arrangements does not mean you are divorced.
What most people do not realise is that a divorce is a separate legal process in Australia.
You do not need to be divorced before you can sort out your property and/or parenting arrangements. In fact, most people do sort out their issues of property and children before getting a divorce. Once a couple is divorced, they have 12 months from the date of divorce to make an application to the Court for a property settlement without the need to first obtain leave of the court to make that application.
How to do your own DIY divorce application?
We have a “no fault” divorce system in Australia. What this means is, for Court purposes, it does not matter why the marriage broke down (e.g. infidelity by one spouse or the marriage might have just run its course). The only requirements for divorce are:
- you are legally married;
- you have been separated for at least 12 months at the time the divorce application is file; and
- there is no chance of a reconciliation.
You also must be an Australian Citizen or resident of Australia, or similar, however it does not matter if you were married overseas, providing the marriage is recognised under Australian law.
For the most part, the divorce application process is administrative. It can all be done online and there is a guide available on the Federal Circuit and Family Court of Australia website.
There is no requirement to have a lawyer complete and file a divorce application on your behalf. In fact, we encourage people to file the application themselves, or at least first look at the application online and see if it is something they can manage themselves before seeking assistance from a lawyer.
Your ex-spouse does not have to agree to the divorce (assuming the requirements for divorce are made out) and you would make a sole application in that case. If at all possible, I recommend you file a joint application, as it means you will not need to serve the divorce application documents on your ex as you will be required to do if you are making a sole application. You will need your marriage certificate to file for divorce. If it is in a language other than English, then you will need to have it translated by a certified translator prior to lodging it with the Court.
If you do not have children under 18 years of age, then you will not need to attend at court for the divorce hearing. If you do have children under 18 years of age, then you must briefly set out what the arrangements are for the children in your application and you will need to attend court for the divorce hearing at the Federal Circuit Court so that you are available to explain to the Court Registrar what those arrangements are and that they are appropriate, should the Registrar require more information.
Serving the divorce application on your ex
If you have made a sole divorce application then you will need to arrange for service of the sealed Court documents on the other party (your ex) once you have filed them. Please note, the rules of the Court prohibit you from personally serving the document on your ex-spouse. You can ask a family member or a friend to do it on your behalf however, I recommend you pay a professional process server to do this for you. The reason for this is process servers are familiar with the specific affidavit of service which must be completed to prove to the Court that your spouse received the sealed court documents. Most process servers will charge between $100 to $200 to serve the sealed documents and provide an affidavit of service. When you get the affidavit of service, you will need to file it in the Court.
If you do not use a process server, it could cause issues if the application documents are not served in accordance with the Court Rules or if the affidavit of service is not completed correctly. It is usually wiser to pay a professional to serve the documents on your ex-spouse.
Whether you have to attend Court or not, there is a Court hearing where a Registrar reviews your application and then (in most cases) makes the divorce order. The divorce order becomes final 1 month and 1 day after the date of the hearing.
The time limit of 12 months to bring property settlement proceedings commences when the divorce order is final.
More Complicated Applications
There is more work involved in an application for a divorce in the following circumstances:
- If your marriage lasted less than 2 years in which case you will be required to provide a counselling certificate before you can file a divorce application.
- If you have been separated but remained living under the same roof for the 12 months of separation, you will need to provide additional evidence in the form of witness affidavits before you can apply for divorce.
- If you cannot locate your spouse to serve the sealed application on him or her you must provide additional evidence to the Court and apply for an order dispensing with service of your application so the divorce order can be made in the absence of the other spouse.
- If you have changed your name from a married name to a maiden name then you will need to provide an affidavit and proof of this.
The Court provides detail as to what is required in these situations, though if in doubt I recommend you obtain legal advice.
Do it yourself Divorce in summary
If you have a straightforward divorce application, you can easily complete your own divorce online without needing legal advice therefore saving you the cost of engaging a lawyer. If you have a complex divorce application, the Court publishes online guides to assist you, however, if you’re uncertain then I recommend you seek legal assistance with your divorce application.
Particularly in the case of a more complex situation, we suggest you weigh up what the cost of getting a lawyer to assist you versus the cost of making your own application (e.g. time, stress, delays with the hearing due to procedures not correctly done, etc). All lawyers are professionally obligated to provide a reasonable estimate of their legal costs in advance to enable people to make an informed decision about whether to engage their services.
Finally, I strongly recommend you do seek legal advice and assistance if you have property settlement and parenting matters to deal with arising from your separation. These types of matters are much more complicated than a divorce and it is important that you obtain sound legal advice on your rights in these situations.
If you are unsure about a do it yourself divorce, please call us for a free first interview and we can talk it through with you.
CAUTION: This article contains general information of public interest only and is not intended to be, nor should be relied upon, as legal advice specific to the reader’s personal circumstances. Should you have a legal matter, please seek professional advice before acting or relying on this content.