EXPLAINER: We asked a lawyer how to file for divorce, should you ever need to.

how-to-file-for-divorce-social

No one ever goes into a marriage thinking about divorce. Unfortunately, it’s a fact of life that not all marriages are forever. Some will end in divorce.

For whatever reason, whether you choose it or not, you may find yourself in a situation in the future where you have to ask yourself:

How do I file a divorce application? How does the divorce process work? What is a no-fault divorce? What’s the cost of a divorce? Is ours an amicable divorce? What about joint custody of the kids?

You might be asking those questions now.

To make sense of a complex topic that often comes with emotional stress and turmoil, we asked two lawyers who specialise in family law to explain how to file for divorce, should you ever need to.

What is a divorce?

Sheridan Emerson, Partner and Accredited Family Law Specialist at Pearson Emerson Meyer, finds we often tend to talk about ‘getting a divorce’ as a long, drawn out and complicated process.

While it can be very emotionally stressful, the act of filing for divorce is fairly straightforward.

Advertisement

“People usually refer to a divorce as one big thing involving money, custody and the end of your marriage. There’s a sense that it’s all wrapped up together – property settlement, parenting agreements,” Emerson told Mamamia.

“Essentially, a divorce is simply the official end to a marriage relationship. In the beginning, you get married and right at the end, one or both of you can apply for a divorce. The divorce, from a legal perspective, is quite administrative, so it’s really a matter of filling out a form.”

divorce
While it can be emotionally stressful, the act of filing for divorce is fairly straightforward. Image: Getty.

How to file for divorce.

As Emerson mentioned, getting a divorce tends to be more about bringing together documents and filing them than sorting through the nitty gritty details of joint finances, property and children.

It's for this reason you can file a divorce application on your own, online, Australian Family Lawyers Senior Associate Maria Pejoski-Aleksovski told Mamamia.

"To file the divorce application, you need to have been separated for at least 12 months and in terms of the process itself, once the 12 months have lapsed, nowadays the divorce application is online-only. It's done through the Commonwealth Courts Portal, you register an account with them and it opens up a work space and easy prompts as to how to file a particular matter."

To file a divorce itself, you click 'file a new application' and select the option for divorce, you then have to go through a series of questions which include:

  • Personal and background information about both parties.
  • Basic information - name, date of birth, address etc.
  • Commencement dates of relationship, marriage, and separation.
  • Details of children, if applicable.
  • Current arrangements for children and how their needs are financially met.
  • Child support concerns.

Other paperwork you will need for the online divorce application:

  • Your marriage certificate - you can't apply for a divorce without a marriage certificate accessible to you, if you don't have the original or a certified copy of your certificate, it's wise to apply for one first before applying for divorce.
  • An affidavit of e-filing - a one-page document that you have sworn by either a lawyer or justice of the peace that says you are filing the divorce application online.
  • A court court brochure that parties are prescribed to have read - it's called Marriage, Families and Separation, and the court will ask whether you've read it or not.

Pejoski-Aleksovski said you're looking at around two to three months from the date of filing in terms of processing times and hearing scheduling.

"When there are no children, attendance at that court hearing isn't necessary because the court 'rubber stamps' the whole process as per Australia's no-fault divorce system. The only time when attendance is required is if the couple have children, so the court can make enquiries about how the children will be looked after."

"If you've engaged a lawyer, they would usually attend on your behalf so you don't have to physically be there."

After that court hearing, a divorce order is made on that day, but not granted until one month and one day after the hearing.

"It's a 'just in case you change your mind' cooling off period. During this time, you can seek that the divorce be reversed, but otherwise you will get a divorce order published in the Commonwealth Courts Portal which is confirmation of your divorce," Pejoski-Aleksovski said.

Explaining the no-fault divorce system.

A term you'll hear when talking about divorce is the 'no-fault system'. Established in Australian Law through the Family Law Act in 1975, the no-fault system is what differentiates divorce in Australia with what we see of it in international media, movies and TV shows.

"The no-fault system means the court doesn't need to know any of the intimate details of the breakdown of your marriage," Pejoski-Aleksovski.

Emerson added, "You don't have to show any evidence that there's been adultery or desertion or any other unreasonable behaviour, or any of those terms you hear from overseas. We just have an arrangement where if you can show you've been separated for 12 months, you can get a divorce."

"It's straightforward, is regarded as a significant thing because it means you don't have to go into the history of the relationship. It's none of anyone's business. It gives people the autonomy to say, I get to choose what's going on in my life."

In keeping with the discretionary nature of the Family Law Act, Emerson also explained there's a reason why you've heard all the gory details of Angelina Jolie and Brad Pitt's divorce from 'sources' in the media, but not an Australian couple like Karl Stafanovic and Cassandra Thorburn, unless they've shared details themselves.

"The difference [between divorce here and in some states in the US], is that you can't publish any details of Family Court proceedings in Australia. One of the key things we see in what we consume in the media is that we often hear a lot about celebrity divorces, you not only hear a lot about the separation but sometimes you see documents that have been filed in the court proceedings."

"You can't do that in Australia. In Australia, it's a criminal offence to publish details of family court proceedings. That's probably a good thing because it means people's affairs are kept private in Australia."

angelina and brad
You'll never hear about a couple's divorce in Australia as much as you do about high-profile American couples. Image: Getty.

Do you really need a lawyer to file for divorce?

Technically, no, but as both Emerson and Pejoski-Aleksovski pointed out, the filing of the online divorce application is really only a formality.

What you may need legal assistance with is sorting out property settlements and parenting disputes/arrangements.

"Before filing for divorce, it's important for a couple to consider their parenting arrangements and a property settlement. I would always recommend seeking some form of legal advice before filing to make sure you're not putting yourself in a corner where you then have to act quickly," Pejoski-Aleksovski said.

"We always advise our clients to deal with these issues first before filing for divorce because as soon as the divorce application has been filed and a divorce order is made thereafter, from that date, the parties have 12 months in which to either resolve parenting or property settlements, or at the very least, file an application with the court. This creates a bit of a time pressure, which isn't ideal considering the emotional turmoil that the vulnerable parties are going through at that time."

Emerson also explained couples don't need to wait until the end of their mandatory 12-month separation period to deal with the money side of things. You can do this on your own to an extent - a legal professional will still need to file all the relevant paperwork to the court - but it doesn't hurt to get some legal advice.

"As soon as you separate, you get can get on and resolve your financials quickly. You don't need to be 'divorced' to deal with the money side of things. The thing that takes the most time, for most people, is dealing with the financial side of separation."

"Getting some good legal advice right at the beginning before sorting anything out so you fully understand things is a worthwhile use of your time, and money. It might help equip you with the information you need to go and do things for yourself."

Can you 'reverse' a divorce?

The short answer is, no.

"Once a divorce order has been made and granted, a couple can not 'undo' that divorce," Pejoski-Aleksovski said.

"While a couple can reverse it during the one month and one day cooling off period, they would need to apply again for a marriage licence and go through all the hoops of getting married if they wanted to be legally married again after that period."

The biggest mistakes lawyers see people make with their divorces.

Pejoski-Aleksovski said she urges all her clients to start noting down dates of events as soon as your relationship starts to break down.

"Always write important dates down, such as the date of separation, or send it to yourself in an email or a text so you have it on file. And get the legal advice early on, especially if you have children."

For Emerson, where she sees people going wrong is when they go into negotiations with their partner before gathering all the correct information.

"When you rely on what you 'think' the arrangement is during a negotiation, but without the right information at the beginning, it can set you back because you just don't know what you don't know. Without knowing, you can really do yourself a disservice," she said.

"Getting correct information, particularly for women, I think it's particularly important, even though I wish this wasn't the case, because sometimes, not always, the woman doesn't have as much of a handle on the financials in her relationship. [This might be] if a woman had children and stepped back from the workforce, and that's just because she's busy doing other things. Sometimes one person in the couple has more information, there are people who can help you find out what you don't know.

"Some people feel quite embarrassed that they've found themselves in a position where they don't really know what their own financials are, but there are people who can help. Not knowing is not something to be embarrassed about. Just go and seek help, that in itself is quite empowering and satisfying. Literally, in these situations, knowledge is power.

The other point she wants women to know about this time in their lives is that it will eventually end.

"Divorce does end eventually. It can feel like your whole world has been tipped upside down when it's happening - some people make the decision to divorce themselves, for others it's a decision someone else has made for them and they have to deal with it."

"My advice would be to seek assistance from a counsellor, it's a really dramatic time in life and it can be very unsettling, getting some emotional assistance is important. Know that even though it feels ghastly at the time, it will pass eventually."

Chloe Shorten explains how she told her children about her divorce below. Post continues after video.

Video by MWN

How to file for divorce in summary:

  • Must be separated for 12 months prior to going through the divorce process.
  • Divorce application to be filed online through the Commonwealth Courts Portal by either one, or both parties.
  • Costs $900 to lodge the application, can be split between both parties or paid by one party.
  • You need the original or a certified copy of your marriage certificate to file for divorce.
  • Both parties have 12 months prior to filing for divorce to settle property and child custody, suggested settling those matters before filing for divorce.
  • If you have children, you or a legal representative will need to appear in court.
  • Always put important dates or gather details in writing.
  • Seek legal advice early to make sure you have the correct information.

If you or someone you know is experiencing domestic violence or requires relationship counselling, please contact 1800 RESPECT on 

JOIN THE CONVERSATION
FROM OUR NETWORK