Clients often ask me, “can I apply for a divorce myself?”
The majority of divorce applications are fairly simple and can be dealt with without the need for a lawyer. The form used to seek an order for divorce is self-explanatory and the majority of people can complete the form themselves. Generally, if clients are able to do an application for a divorce themselves, then I will encourage them to do so, so that they can save on costs.
A kit can be downloaded from the Family Court of Australia website and you can either type in your answers yourself or write it in by hand.
However, some situations can require additional documents at which time you may wish to engage a lawyer to act on your behalf. Frequent examples include where the parties are separated under the one roof, where the client has been unable to locate a marriage certificate, or where there is difficulty in serving their spouse with the documents.
You are not able to apply for a divorce order unless you have been separated from your spouse for 12 months. The 12 months separation period shows the courts that you have fulfilled the primary ground for a divorce — that there has been an irretrievable breakdown of the marriage.
Clients are also often unsure of the date of separation. Generally, the date of separation is the date that one of you decides that the marriage is over and communicates this to the other party.
If you are applying for a divorce yourself, below are some things to remember when lodging an application:
- The application for divorce must be served on the other party. You can post it to the other party (but this will only work if they sign to acknowledge service and you need to attach this to an affidavit of service by post), hire a process server for between $110 to $300 to do it for you, or you can find a friend or family member over the age of 18 to hand deliver it for you. You cannot yourself hand deliver it yourself. The person who serves the application must then sign an affidavit of service confirming that they have served your application for divorce on your spouse.
- If you do a joint application for divorce, you will not need to serve the application on your spouse.
- A reduced filing fee is applicable where the applicant holds a government concession card. If a joint application is made, but only one of the parties is entitled to the concession, then the higher fee will apply.
- Even if you do not have a government concession card, you may be able to pay the reduced fee if you can demonstrate hardship.
- If there are children of the marriage under the age of 18 and you have made a sole application for divorce, then you will need to attend the hearing*.
- If you make a joint application for divorce and there are children of the marriage under the age of 18, you are not required to attend the hearing*.
- If there are no children of the marriage under 18 years of age then you will not need to attend the hearing*.
- If you have been married for less than 2 years, then you may wish to wait for 2 years to pass before applying for a divorce, otherwise, you will need to either attend counselling with an approved family and child counsellor to consider a reconciliation or seek permission of the Court to apply for a divorce.
- You will need to lodge the original application for divorce and two copies along with your marriage certificate. If you are an Australian citizen by grant of citizenship you will also need to lodge a copy of your passport or Australian citizenship certificate.
- A divorce order will only take effect one month after the making of the order.
*Note: you may still need to attend the hearing or a subsequent hearing if there is anything unusual.