Do you want a DIY divorce? You can do your own divorce application – a “do it yourself” divorce is easier than you think and is now made even easier with the Court’s online service.
There are three separate and sometimes interrelated legal issues married couples must resolve when they separate. They are dividing their property, making arrangements for custody of their children and getting a divorce.
A lot of people come to me and ask about their divorce, but what they really mean is dividing their marriage property, or getting some orders around child custody. These are often the most important issues for people to resolve after separation, but they are not strictly a divorce.
What most people do not realise is that a divorce is a separate legal process in Australia, which serves two purposes:
- You must divorce if you wish to remarry at a later date;
- Once the couple is divorced, they have 12 months from the date of divorce to make an application to the Court for a property settlement.
You do not have to be divorced before you can sort out your property and/or child custody issues. In fact, most people I help do sort out their issues of property and children before getting a divorce.
HOW TO DO YOUR OWN DIY DIVORCE APPLICATION
We have a “no fault” divorce system in Australia. What this means is, for the Court’s purposes, it does not matter why the marriage broke down (e.g. infidelity by one spouse). The only grounds for divorce is that you are separated and have been separated for 12 months and 1 day. You also must be an Australian Citizen or resident of Australia, or similar, however it does not matter if you were married overseas and have an international marriage certificate.
For the most part, the divorce application process is administrative. It can all be done online and there is a guide available at the Federal Circuit Court website: http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/how-do-i/divorce/apply-for-a-divorce/apply-for-divorce
For most divorces, my view is people do not need to spend money on a lawyer and can do it themselves. There is no requirement to have a lawyer complete and file a divorce application on your behalf. In fact, I encourage my clients 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 asking me to assist them.
You can either make a joint or sole application for a divorce. Your ex-spouse does not have to agree to the divorce (assuming the grounds are made out) and you would make a sole application in that case. Most people file a sole application. If at all possible, I recommend you file a joint application, as it means you will split the Court filing fee between you (currently $865 unless you qualify for a fee reduction), and you do not have to arrange for legal service of the documents on your ex-spouse and prove to the Court he or she has been served with a copy of the application.
You will need your marriage certificate. 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 do not have to attend at court for the divorce hearing. If you have children under 18 years of age, then you must set out what the arrangements are for the children in your application. You will also have to attend court for the divorce hearing at the Federal Circuit Court and explain to the Court Registrar what those arrangements are and that they are appropriate.
If you have made a sole DIY divorce application then you will have to arrange for service of the sealed Court documents on your ex-spouse. Please note, the rules of the Court prohibit you from serving the document on your ex-spouse personally. 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. For the headaches it would cause someone inexperienced with the system to serve the application in accordance with the rules and properly complete the affidavit of service, it is usually easier 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. You will be posted out a sealed copy of the divorce order to your address as recorded at the Court.
MORE COMPLICATED APPLICATIONS
There is more work involved in an application for a divorce in the following circumstances:
- If your marriage has lasted less than 2 years then 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, although if in doubt I recommend you obtain legal advice.
SO, DIY 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 hundreds in legal fees. If you have a complex divorce application then the Court publishes online guides to assist you, however if you’re uncertain then I recommend you seek legal advice to assist in preparation of the documents. It will always be easier to consult an expert, so weigh up what the likely cost of getting a lawyer to draw up these documents for you versus the cost of taking that action yourself (e.g. time, stress etc). All lawyers are professionally obligated to provide a reasonable estimate of their legal costs in advance to clients so they can make an informed decision about whether to engage their services.
Finally, I strongly recommend you obtain legal advice and assistance if you have property settlement and child custody 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 come and see 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.