DIY Divorce

just divorced carDo you meet the requirements for a DIY divorce?

Normally, there shouldn’t be any obstacles to you filing your own divorce application without the need and cost of a lawyer. It’s a pretty simple process and can be done by simply filling in a form, and either dropping it in or mailing it to the court. You can also save yourself the stamp (or the walk to court) and file your divorce application on-line.

But there are a few exceptions where you will have to appear in court:

• You must attend the divorce hearing if you have  a child of the marriage who is under 18 years and the application your filing is a “sole” application (as opposed to a “joint” application by you and your spouse).

• You also have to attend the divorce hearing if you have filed a response to the divorce, where you wish to reply to or disagree with something in spouse’s “sole” application. If you don’t appear, what is being asked for by your spouse may be granted in your absence.

The Application for Divorce Kit

The Federal Circuit Court in conjunction with the Family Court have a really easy to follow how to apply for divorce page. This provides the steps in applying for and obtaining a divorce and also includes the application for divorce form.
ALL divorce applications now must be done online (please see next paragraph for more info on this).

There are some documents you need to file when you’re doing your divorce application.

These ‘supporting documents’ include:
♦ A copy of your marriage certificate (or an official translation of it if it’s not in English).
♦ You may also need a supporting document if part of the 12 month period you were separated was spent under the same roof.
An affidavit advising this must be filed.
We can assist with preparing this affidavit, our rates are about a third of the cost of those main street lawyers… who usually have half our experience.
Drop us a message via Facebook Messenger or make an online appointment to have discuss your needs HERE

Once you have completed the application for divorce and found all your important docs (eg marriage certificate etc) you need to scan them and download them on to your Commonwealth Courts account.
Now lets take a look at how you set up this account. 

eFiling of divorce applications

vint. computer and womanIn Australia, your Divorce Application must now be done online.
Filing in person or at the court is now not possible unless you have an exceptional circumstance for not e-filing. The new system has great advantages as it saves time and money.
You apply for divorce online using the interactive Application for Divorce form on the Commonwealth Courts Portal (www.comcourts.gov.au).
As mentioned above, you must also eFile certain accompanying documents like your marriage certificate, affidavits and supporting documents. For these documents you should make a copy of the original and then take the copy AND the original to a Justice of the Peace, police station or community legal centre to get the copies you have made certified. You would then scan the certified copies of all your documents and download them on to your Commonwealth Court Portal account. If you’re confused about how to do this ‘scanning and saving’ just ask a friend whose more computer savvy to assist you. Even I had to get some help when this method first started over 5 years ago! 

For more information see the Commonwealth Courts Portal’s user guide and the How do I Apply for Divorce page.

How to “serve” your documents to your soon to be “ex”
Serving documents sounds a little strange to most folk but it’s just a legal expression to say you made sure your soon to be ex got your divorce application (and any other important documents needed). It is also important to include a copy of the brochure that the court provides with the documents being served. It’s called Marriage, Families and Separation.
You are not allowed to do the service by hand yourself.
Suffice to say it also means you avoid any potential conflicts or grumpiness from the other party.
Service of a divorce application can be done either:

BY POST and here I would recommend registered post OR
BY HAND and here you can use a good friend, family member or a professional process server.
(You can find these hardworking people online and their charge is normally under $100).
Service is not needed when doing a joint application for divorce.
After service has been completed you need to go online  to your commonwealth court account and file the “Affidavit of Service” This document is to tell the court that the other party has been served the divorce papers. Yippee!
Still confused? Here’s some useful information on service of documents.

Fees

Even though you may wish to do your application without the assistance of a lawyer, there is still a filing fee for any Application for Divorce. The fee must be paid at the same time as you submit your on-line application.  Credit Card payments can be made by Visa or Mastercard. Debit cards/eftpos are also accepted. 

In some cases a reduced fee may apply if:

♦ You hold certain government concession cards (health care card, pensioner concession card, Commonwealth seniors health card or any other card issued by the Department of Families Housing Community Services and Indigenous Affairs or the Department of Veterans’ Affairs that certifies your entitlement to Commonwealth health concessions)

♦ You are receiving youth allowance, Austudy or ABSTUDY payments

♦ You have been granted Legal Aid, or

♦ You are aged 18 or under, or an inmate of a prison or legally detained in a public institution.

Finally, you may also qualify if you can demonstrate financial hardship.

The current fees (as of May 2019) to file an application for divorce are:
$900 or $300 if you qualify for the reduced rate. For more information see the Family Law fees section.

And for those in Western Australia, as of 2018, the Family Court of WA now also provides services through the commonwealth courts portal including handling your application for divorce and payments. 

Once your Application for Divorce is processed it is allocated a hearing date in the court. If you are not responding to your spouse’s divorce application or you and your spouse are submitting a “joint” application, you will not normally have to attend court.

If you have made a “sole” application and there is a child of the marriage under 18 years, or you have had a short marriage under 2 years or you requested to dispense service because you couldn’t find your ex to serve them,  you are required to attend the court hearing unless circumstances prevent you from attending. For example, circumstances might be the long distance from the court or your incapacity. The court may offer you the option of appearing by phone but you need to arrange that with them well before any court date.

The other party can file a Response to Divorce, after you have served them. That also may result in you having to go to court to finalise the divorce.

However, if the other party has completed and filed a Response to Divorce, but does not oppose the application, then you shouldn’t need to attend any hearing.

After the court has granted a divorce order, the court makes the order one month and one day after your hearing. Your divorce then becomes final and they will post the divorce order to each of you. 

FIND OUT ABOUT HOW PROPERTY IS SORTED OUT HERE
AND CHECK OUT WHAT HAPPENS WHEN IT COMES TO THE KIDS HERE 

What happens if it goes to Court?

courtroom 2 womenSo as mentioned, there should only be a few reasons why you end up in court for a hearing about your divorce application.
You must attend the divorce hearing if:

◊ There is a child of the marriage under 18 years AND the application is a “sole” application (rather than a “joint” application)  This is so the Judge knows that the parenting arrangements for your kids have been properly organised.

◊ You have filed a ‘response’ to the divorce.

It is usually a Registrar of the court (a court appointed lawyer) who presides over your hearing and makes the decision like whether your divorce will be granted.

At the hearing, the court considers whether your divorce should be granted. With this in mind, remember that the court doesn’t want to know all the ins and outs of why you are getting divorced, or any property, maintenance or child support concerns you might have. These things require separate applications to the court.

However, what the court DOES want to know (where there are children under 18), is that adequate arrangements that have been made for the care and well being of those children. The court grants a divorce order only when it is satisfied about what arrangements have been made for the children and in the case of a sole application, that the other spouse was served correctly. If either of you are responding to a divorce application the court will also hear you out on anything you are concerned about.

After the court has granted a divorce order, the court makes the order one month and one day after your hearing. Your divorce then becomes final and they will post the divorce order to each of you.

Here’s a short video providing tips about preparing for court and what the court will expect from you.

Need help?
The Legal Eagle has been assisting people to successfully self represent for many years. We are passionate about helping people succeed with their legal matters and avoid ridiculous legal fees. Our rates are a third of what fat cat lawyers charge!
We can prepare and draft all your documents and affidavits so they are perfect and give you advise on how to deal with mediation and any negotiation so you don’t get taken for granted.
If you don’t want an expensive lawyer but still would like some legal help, contact us on either Facebook Messenger or book a phone appointment HERE.