Divorce proceedings in Australia have become more DIY-friendly, especially for those considering a divorce without a lawyer. Since the merger of the Federal Circuit Court and Family Court, court proceedings have been streamlined.
However, it’s crucial to fully understand the divorce application process to ensure you avoid any mistakes. It’s also vital to know when to seek legal advice.
Divorce application
The easiest way to apply for a divorce is online through the Commonwealth Courts Portal.
Check our blog for an easy process when applying for divorce online: How to Apply for Online Divorce Application? (8 Simple Steps Guide)
Here are some points to consider before applying.
Marriage certificate
You must produce your marriage certificate to get a divorce. If you were married overseas, you may need to get your marriage certificate translated by an accredited translator. You can find one through the National Accreditation Authority for Translators and Interpreters’ online directory.
If you have misplaced it, you can order a replacement through the Registry of Births, Deaths, Marriages and Divorces for a fee.
Eligibility for divorce proceedings
To be eligible for a divorce, you or your spouse must be an Australian citizen or have lived in Australia for the past 12 months. You may need to produce evidence of the length of your residency in Australia. This may be a signed letter from an employer, educational institution, doctor or the Australian Electoral Commission.
Separation requirements
Before applying for a divorce, you must have been separated from your spouse for at least 12 months. You may continue to cohabit during your separation. However, both parties must produce an affidavit explaining the circumstances. It would be best if you also got an affidavit from a third party familiar with your situation, such as a family member or friend.
If you need help with your divorce, you can get a free 30-minute consultation from Ferrall & Co. Lawyers. Contact them for assistance.
Sole application vs joint application
Joint applications are generally more straightforward. But sometimes, a sole application is unavoidable. The main difference is the need for a sole applicant to serve divorce papers on their former partner.
Serving divorce documents
Divorce documents can be served by hand through a third party over 18 years old. You cannot serve the papers yourself. If you’re confident your spouse will sign and return the documents, you can serve them by post. You can also serve your spouse’s lawyer if they accept service.
Seeking legal advice
Divorce applications can be straightforward. However, there are times when legal assistance is recommended.
Your spouse refuses to cooperate
Sometimes, a spouse won’t cooperate with the proceedings. This can create complications that a divorce lawyer can help resolve.
Refusing service
You may need help serving your spouse. Often, they will be unlocatable, making service difficult. A divorce lawyer can help you apply for substituted service.
This allows you to serve someone who will bring the application to your spouse’s attention. This may be a friend, family member or colleague. You may also be eligible for dispensation of service. This applies if you’ve exhausted all reasonable attempts to serve the documents.
Counselling requirements
If you have been married for less than two years, you must attend counselling before applying for a divorce. If your spouse is missing or refuses to attend, you can apply to have the counselling requirement waived. A family lawyer can fill out an affidavit explaining the situation.
Mediation
Mediation services can be vital to resolving conflicts during family law matters. You may be struggling to organise a property settlement or parenting arrangements. A family lawyer can help with the mediation process.
The Family Relationship Advice Line is a valuable resource. It can help if you need assistance with family conflicts or want a referral to other service providers.
Download our FREE Divorce Checklist for a more detailed guide on the next steps.
Proving separation
Separation can be complicated to demonstrate. This is especially true if you’re living under the same roof as your spouse. When filing an affidavit to explain your circumstances, it’s crucial to ensure it’s worded correctly. This affidavit should cover all necessary points. A divorce lawyer can work with you, your spouse, and a relevant third party to explain the situation adequately.
Financial hardship
Family law matters can be expensive. Divorce applications have a filing fee that can’t be waived, but you may be eligible for a reduction. The Court a three-part test to determine if you can receive a reduced fee. A divorce lawyer can help you gather the necessary documentation and satisfy the tests.
Conclusion
No two divorces are the same. Some may be straightforward and relatively painless, while others run into complications. By understanding the process, you can go a long way by yourself.
However, professional legal assistance will benefit from the complexities of uncooperative spouses or mediation requirements.
If you need a divorce lawyer, Ferrall & Co. can help. Contact us today.
