Most of us have at some stage in our childhood fantasised over our wedding day. Who will I marry? What will they look like? Where will I get married? As a mother of four small children, I often have three little ‘brides’ and one very reluctant ‘groom’ (my 9-year-old son) role playing ‘weddings’ in my lounge room.
But what happens when the fantasy is no longer a reality? The decision to separate and end a marriage is not an easy one to make. Just as every marriage is unique to the couple in it, so is every separation and divorce. Some are amicable and a joint decision; most are highly emotional and messy.
In situations like these, when emotion clouds judgement, it is really important to know the steps, process and what to can expect during separation and divorce.
Step 1 – Counselling and mediation
If you have decided to separate from your partner, the Family Court of Australia strongly recommends that your first step should always be counselling and informal mediation. There are several fantastic counselling agencies like Relationships Australia where you can go for help.
Of course, your partner may not wish to participate in counselling. In this situation, it is still worthwhile accessing support as it can save time and money down the track when you need to sort through big decisions.
Counselling services may also be able to provide you with an informal mediator. This can help with making interim decisions like care of your children, who will stay in the marital home, and making sure financial responsibilities like mortgage or car payments are maintained.
At this stage, any decisions you make with your partner are not legally enforceable until they are formalised in a binding financial agreement or consent orders.
If you manage to reach mutual decisions on these types of issues early on, you can save a significant amount of money and time later.
Quick tip: If you both decide to remain in your marital home, it is critical that you record your official date of separation in a journal or diary. This can then be used to substantiate your divorce application, which requires couples to be separated for at least 12-months before making an application for a divorce.
Step 2 – Reaching An Agreement
If you can both agree about how your property will be split, how you will deal with finances and contact with your children (if applicable), it is vital to formalise these arrangements either in a binding financial agreement or formal consent orders.
If you don’t formalise your agreements, you run the risk that your partner may be able to make a future financial claim or decide to renege on what you originally arranged.
At this point, you should consider getting in touch with a family lawyer who will draft the necessary documents for you. Since your lawyer can only act for you, your partner will need to seek independent legal advice before any agreement or consent orders can be officially executed.
Quick tip: The benefit of getting legal advice during this step of the process is that everything, including issues you may not have considered such as superannuation, child support and spousal maintenance, will all be factored in and settled early.
Step 3 – What happens if you can’t reach an agreement?
Both Courts have guidelines which explain their processes.
A crucial step during this stage is to attend a conciliation conference with your partner. This is a court-based mediation type process administered by a Court Registrar and where lawyers may be present (unlike the informal mediation referred to in Step 1). The aim of the conciliation conference is to encourage each of you to reach an agreement about your finances, arrangements for your children, and how you will divide your property and assets.
If you still don’t have any luck reaching an agreement, then your matter will go to a hearing before a Family Court or Federal Circuit Court Judge.
Getting to the point where you need the Court to resolve these issues is undesirable for a number of reasons. Firstly, the Court process is extremely expensive and can be highly stressful. Secondly, the power over crucial elements of your life is taken from you and controlled by the Court – something the Court would much rather have you determine for yourself.
Bear in mind that if you have already obtained a divorce certificate, then you have 12-months to finalise these arrangements.
Quick tip: Do everything you can to reach an agreement between you and your partner on your own. It is much more cost effective, less stressful and faster to only contact a family lawyer once you have come to an agreement on the big issues. That way it is just a matter of formalising arrangements with consent orders.
Step 4 – Officially ending your marriage (Divorce Certificate)
If you have been separated for 12-months and still wish to get divorced, the final step is to apply for a divorce certificate.
Only one person needs to make the application. Although if the application is made jointly it makes the process much more streamlined by removing the need for you to have documents served on your partner.
The main requirement that needs to be satisfied in an application for a divorce certificate is that you and your partner can show that you have been separated for more than 12-months and that there is no reasonable likelihood of resuming married life.
If this step seems a bit daunting, you can seek a family lawyer’s help when making your application. They can then appear on your behalf when the application goes before the Family Court.
This final step is really just an administrative and lawful acknowledgement that your marriage has ended.
To make an application for a divorce certificate:
- Complete an online application for divorce at the Federal Circuit Court website
- Upload a copy of your marriage certificate at the time your application is made (if you don’t have a copy you will need to apply for one from the Births, Deaths Marriages Registry in your state or territory)
- Where you are making a joint application for divorce with your partner, there is no need for any documents to be served
- Where you are making the application on your own, your application for divorce, together with a Marriage, Families & Separation Brochure must be served on your partner at least 28-days before your hearing date
- Service of your Application for Divorce and the Marriage, Families & Separation Brochure can be by post or in person
- An Affidavit of Service by Post or an Affidavit of Service in Person must be sworn and witnessed by a solicitor or Justice of the Peace
- An Acknowledgement of Service must then be signed by your partner to confirm that he/she received the documents as well as the date they were received
- The Affidavit of Service and Acknowledgement of Service must be filed with the court before your hearing date
- If you have minor children, then you, or you and your partner, or your lawyer must attend the hearing
- If you don’t have minor children, then neither you or your partner are required to appear at the hearing
- Once your application has been approved by the Federal Circuit Court Magistrate, a Divorce Certificate will be sent to you and your partner, officially ending your marriage.
To contact a legal professional specialising in family law who will cost out each stage of the Family Court processes (and minimise legal fees) visit:
- Email Karen Finch here for a complimentary consultation and fixed-fee quote; or
- Phone 1300 822 708.
For more information on ‘do it yourself’ divorce kits, visit:
Family Court of Australia
- Application for consent orders (DIY Kit)
- Application for Consent Orders – Proposed Orders Template
- Application for Divorce Kit
- Divorce Service Kit (DIY Kit)
- Financial Statement Kit (DIY Kit)
**This article was written in conjunction with Kimberley Smith, an experienced family lawyer with Legally Yours.
Have you, or someone you know, tried a DIY divorce or opted for a hybrid option which uses a family lawyer at specific stages of the process? What were your impressions and experiences? Let us know in the comments!