In previous years, the impact of tech disruption in the global travel and hotel industries has been enormous. Demand for faster, easier and more cost-effective online flight and hotel bookings has given way to holidaymakers cutting out travel agents as the middleman in favour of organising flights, accommodation, and activities themselves.
The effect of tech disruption in the Australian legal industry has had a comparably major impact. Digital access to ‘cloud-based’ lawyers, reduced cost and fixed-fee services have become more mainstream, along with a steady increase in demand for access to online legal information. Many Australians, as far as possible, wish to increase efficiencies and save money by handling early stage legal issues themselves.
Now, when it comes to divorce and the separation of assets, more and more Australians are seeking the ‘do it yourself’ option. One that involves accessing legal information online to reduce the time, cost, stress, and anxiety some Australians experience, or think that they will experience, when consulting a lawyer.
But how feasible is this option? Is it simply a matter of downloading relevant information and lodging the correct documents with the Family Court? Or is the process a little more complex, confusing and difficult to achieve alone? If the decision to get a divorce has not been mutual or amicable, it can be a very scary, overwhelming, stressful and expensive stage in your life. The costs associated with divorce (and lawyers) can also be frightening.
If you are considering the ‘DIY divorce’ route, below we outline the basics of the divorce process as well as the relative pros and cons of ‘going your own way’ without the help of a lawyer.
What Does ‘Getting A Divorce’ Mean?
When it comes to the full spectrum of human emotion, divorce is consistently ranked alongside the death
of a loved one as one of the most traumatic experiences anyone can go through.
Most of us don’t even realise that the word ‘divorce’ can actually entail three different elements:
- Obtaining a divorce order which recognises that you are no longer married
- Obtaining a property settlement (i.e. dividing your marital assets); and
- Obtaining parenting orders, where there are children under the age of 18 years.
When Can I Obtain A Divorce Order?
To become legally divorced (by obtaining a divorce order), you first need to show that you have been separated for over 12 months.
For this reason, it is a good idea to document the date your separation occurs.
If you have been married for less than 2 years, you may also need to show that you have attended couples counselling.
In situations where you have been separated but continue to live under one roof, it is also imperative that you document when this arrangement first started, as this period can be included in the calculation of your 12 month separation.
Once you and your spouse have been separated for over 12 months, one of you can make an application to the Family Court for a divorce order.
When this is granted, a certificate is issued by the Court which declares that your marriage has now ended.
I Have A Divorce Order, Now What?
Once you have received a divorce order, you usually have 12 months to use the Court process to seek orders which relate to the division of your assets and parenting of any children under the age of 18 years.
You do not need to be divorced, or separated for any particular period of time, to seek a division of assets or parenting orders for children under 18 years, or enter into a Binding Financial Agreement.
In fact, it is often recommended that you discuss with your partner and decide on the division of assets and parenting orders prior to applying for a divorce order.
The Pros And Cons Of DIY Divorce
Now your decision comes down to whether you should do any of these things yourself or whether you should contact a lawyer to help you.
Before speaking with a lawyer, it is worthwhile to consider counselling or informal mediation with your
As you would imagine, it is usually far better (and less costly) to reach an agreement amicably rather than by fighting it out in court. It is important to remember, however, that any arrangements you make at this stage may not be legally binding until they are registered as Final Consent Orders with the Family Court or signed off by two independent solicitors in a Binding Financial Agreement.
The Family Court is focused on what is just and equitable and, therefore, will not approve Orders or Binding Financial Agreements that disadvantage either person.
- The main advantage of a ‘do it yourself’ divorce is that you save money on legal fees.
The Family Court website has Divorce Kits that can be completed online. This is a simple process where there are no children under 18 years and there are minimal assets to divide.
However, if you do have children under the age of 18 years, you will be required to appear in Court. In this scenario, without the assistance of a lawyer to talk you through court procedures and what may be expected of you, it can be a pretty daunting experience.
- The main disadvantage of acting on your on own behalf in a family law matter is the difficulty in reaching an agreement.
Even in amicable separations, emotions can run high which can make coming to an agreed landing on the division of assets, or care of children, virtually impossible.
The benefit of having a lawyer working for you is that they can negotiate in your best interests in an impartial way and advise you on your likelihood of success.
- A secondary disadvantage of a ‘do it yourself’ divorce, if you don’t have legal training, is the possibility of facing avoidable mistakes and significant delays.
Lack of familiarity with court documents and processes, particularly when combined with the inherent emotional strain of a divorce, can result in important steps and items being missed and incorrect processes being followed.
You may have all of your required affidavits and documents filled out and witnessed by the correct people, for example, but one missing date or a signature in the wrong place can unexpectedly send you back to square one and needing to start the process from scratch.
If you are on tense terms with your former spouse, making additional arrangements to meet and to re-sign papers can put you under extreme and unnecessary stress and pressure.
In some cases, you may need to contact a family lawyer to help you sort out any errors. Sometimes correcting issues at this late stage can be more expensive than if a lawyer had been involved from the outset.
- It is also critical that any agreement you and your spouse reach is registered as Final Consent Orders with the Family Court, or as a Binding Financial Agreement.
If you don’t enter a formal agreement, there is a risk that your ex-spouse can make a claim on your assets many years down the track.
The best way to make sure that you don’t expose yourself to an unnecessary risk of a further claim against your property or assets in the future is to seek legal advice.
The reality is that obtaining a completely lawyer-free property settlement is nearly impossible.
If you are an informed, efficient and motivated person who wishes to the keep costs, anxiety and complexity of your divorce to a minimum, a mixture of ‘do it yourself’ divorce and legal representation may be the answer you are looking for.
To do this, try to resolve as many issues as you can between you and your spouse (such as the division of assets and arrangements for the care for your children), before seeking legal advice.
This strategy will help to keep costs down and will also mean a more successful and harmonious relationship once your property settlement and marriage dissolution have been finalised.
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)
Have you, or someone you know, tried a DIY divorce or opted for a hybrid approach? What were your impressions and experiences? Let us know in the comments!