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DIY Divorce & Separation When You Don’t Need To Use Lawyers For Divorce

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DIVORCE PROCEEDINGS IN AUSTRALIA

Time to read : 8 min read

Guided Self Help Six Easy Steps To DIY Divorce

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Abstract:

Yes you can do divorce yourself without engaging lawyers but be aware of the tips and traps. Guided self-help to do it yourself will save you in legal fees help you understand the process. You cannot sort out the custody of children or the finances by filing for a divorce. This simply annuls the marriage. You do not need to be divorced to sort out parenting and/or the financial aspects; you simply need to be separated.

Warning: sort out your financial matters after divorce within 12 months. However, if you are separated, having being married, the time limits do not start until you are divorced.

Article:

When you do not need to use the lawyer for divorce and do I have to attend Court?

Divorce explained in 6 easy steps

Let us be clear that we are speaking about a divorce and not about the custody of children, sharing parenting obligations or separating finances.

File electronically yourself

You do not need a lawyer if you can use the FCFOA. (Family Court) website to electronically file for a divorce.

You need to make sure you are eligible below to file for the divorce and you will need to serve your other partner with the divorce papers once they are sealed.

All of this can be done for free except the fees of the court which are $1031 (subject to CPI indexation).

All of this can be done online and there is a checklist and a court portal to e-file for your divorce.

Service of the divorce papers is very important

If you  can serve these documents electronically, by email, on your partner, and he accepts the service then you will not need to go to court.

When you agree with your former spouse

If you cannot serve your partner, or there are other reasons, such as a short-term marriage or where the court is not satisfied that adequate arrangements have been made in relation to children under 18, you will need to go to court.

If you have agreement with your partner on parenting arrangements. You will not have to go to court to sort out the custody of the children, but simply satisfy the court that adequate arrangements have been made. In this case, you do not need a lawyer.

If you and your former spouse are perfectly agreeable on the separation of finances, you will not need a lawyer. However, if you are separating mortgages, the bank may need a copy of a binding financial agreement (BFA) or court order to ensure that you have separated your finances properly and that you would be liable separately for any new mortgages. In this case, you may need a lawyer, certainly for a BFA.

The advantage is that you do not have to pay any stamp duty on any property transfers. If you are separating your finances pursuant to court orders, or a BFA.

Step 1 – Check Your Eligibility –– 12 Months Separation

The Family Law Act 1975 established the principle of no-fault divorce in Australian Law.

When granting a divorce, the Court does not consider why the marriage ended and the only ground for divorce is that the marriage broke down and there is no reasonable likelihood that the parties will get back together.

Children and Financial Matters Do Not Need A Divorce To Be Finalized

The granting of a divorce does not determine issues of financial support, property distribution, or arrangements for children. It simply recognizes that the marriage has ended.

Step 2 – Eligibility To Apply For A Divorce?

You can apply for a divorce in Australia if either you or your spouse:
regard Australia as your home and intend to live in Australia indefinitely, or are an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Living Under The Same Roof Can be Living ‘Separately’

You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.

Step 3- What A Court Considers In Divorce Applications

If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.

Step 4- Pay the Fee – What Will A Divorce Cost?

There is a filing fee for divorce applications and currently it is $1031.

Can I Get A fee Exemption?

In some cases; for example, if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee.

Step 5- Service of Papers and Can I Oppose A Divorce Application?

If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where: there has not been 12 months separation as alleged in the application, or the Court does not have jurisdiction.

If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date.
You need to set out the grounds on which you seek the dismissal in the Response to Divorce.

If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence

Step 6 – All online OR Do I Have To Attend The Divorce Hearing?

No children under 18

If there is no child* of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.

Joint application with children under 18

If you have made a joint application, you and your spouse are not required to attend the court hearing (even if there is a child of the marriage aged under 18).

Sole application with children under 18

If you have made a sole application and there is a child of the marriage aged under 18 years, you (the applicant) are required to attend the court hearing unless circumstances prevent you from attending (see below).

Your spouse does not oppose the divorce

If there is no Response to Divorce, the other party is not required to attend, although they may do if they wish. If a respondent has completed and filed a Response to Divorce, but does not oppose the application, he or she does not need to attend the hearing.

Your spouse opposes the divorce

If a respondent has, in a Response to Divorce, opposed the application, the respondent must appear in person on the hearing date.

Will Decisions About Future Arrangements For Our Children, Property And Maintenance Be Made At The Same Time?

The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can: make an agreement with your spouse and file it with a court, or seek orders from a court, where you and your spouse cannot reach an agreement.

For parenting cases, you also have the option to make a parenting plan. If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.

I Have Applied For A Divorce, Is It Safe To Set A Wedding Date For My New Marriage?

You should not make firm plans to marry on a specific date until the divorce order is finalized. You may, however, complete and lodge a Marriage with an authorized celebrant before the divorce order is finalized.

If you intend to remarry, you must lodge the Notice of Intended Marriage with an authorized marriage celebrant at least one month before the date the marriage is solemnized, and comply with other requirements of the Marriage Act 1961. The authorized celebrant must sight a copy of the divorce order before the wedding can take place.

In most cases, the divorce order takes effect one month and one day after the divorce is granted. You should not assume the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.

We Want To Divorce but Have Been Married Less Than Two Years. We Understand We Have To Do Certain Things, What Are They?

If you have been married less than two years you will need to file a counseling certificate. To obtain a certificate you will need to attend counseling. The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce.

You and your spouse must also have been separated for at least 12 months before applying for a divorce.

Married Overseas – Can I Get A Divorce In Australia?

If you were married overseas, you can apply for a divorce in Australia if either you or your spouse: regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or are an Australia citizen by birth or descent are an Australia citizen by grant of an Australia citizenship ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file an English translation of it, and an affidavit from the translator.

I Got Divorced Overseas- Is It Recognized In Australia?

You can apply for a divorce overseas. Australia will recognize a divorce if it was effected in accordance with the laws of that country.

How much will it cost for Goldman lawyers to help me if I need to speak to a lawyer, but still do it myself?

Our guided self-help options provide the opportunity to speak to a lawyer about specific aspects of your own application or your own case.

If you use our guided self-help portal (links) then you can obtain specific advice.

Starting from $100 for 15 to 20 minutes of a lawyers time, or our most popular option which is for a 30 minute discussion, including review of documents for $200 plus GST. If we need to quickly draft or read drafts and parenting orders or consent orders for you on key aspects then avail yourself of the $500 option.

We also will provide quotes and estimates for specific work over and above the guided self-help blocks quoted above,

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