How to Get Divorced

In this week’s podcast, I discuss the actual process of getting divorced legally.  A lot of clients assume that before considering talking to a professional about their separation they need to wait 12 months. They don’t understand the different stages.

Yes, while it does take 12 months to apply for your divorce decree, it does not mean in the meantime you should not be working on your financial and parenting arrangements.

There is a lot of confusion around this process and how best to get it completed. Actually dissolving your marriage by applying for a divorce, in my view is the easiest part of the process and can be completed online.

In this podcast, I explain why you need a divorce and then breakdown the stages for applying for your divorce and how to save some coin by being clever.

So let’s get into it:

Timestamps:

The Legal Definition of Marriage [00:03:00]

Validating a Marriage [00:05:00]

So why 12 months and not as soon as you have decided the marriage is over? [00:06:00]

The issues with today’s court system [00:08:00]

How to apply for a divorce [00:10:00- 00:16:00]

File divorce application

Serve your spouse

Court hearing

Decree Absolute.

Why going to court isn’t scary [00:17:00]

Links:

Definition of Marriage

Family Court of Australia Divorce Information

Transcription

Episode 9

Welcome to Divorce Angel Podcast and thank you for joining us. Get ready to uncover the strategies everyone can implement for a successful separation and divorce. This will save you valuable time, money, and emotions while learning the secrets to you happily ever after. Now, your host, my wife, Tanya Somerton.

Hello and welcome to the Divorce Angel Podcast. I’m your host, Tanya Somerton. For those of you who don’t know me, I’m obsessed with helping people chart a course through the complex process of divorce and starting a new life. It can be really stressful and confusing, and my job is to streamline it for everyone involved and that’s what gets me up in the morning, that’s what keeps me going throughout the afternoon when all I want to do is have a chocolate and a coffee. It’s something that I’m really, really passionate about. Let’s get into this week’s podcast.

I thought we’d have a chat about how to get divorced because it’s a really interesting question. A lot of people don’t actually know. They think that the process is you just wait 12 months and that’s it, everything’s done, but I thought we’d get into it into a little bit more in-depth in this episode.

If we look at the legal definition of marriage, legally speaking, marriage is a contract made in conjunction with the law where a free man and a free woman agree to engage to live with each other during their joint lives in the union which is ought to exist between man and woman or husband and wife.

Validating a marriage. To make a marriage valid, the parties must be able to contract and then be contracted and overall, be willing to contact. “Pardon,” you might say. What does that mean? There’s a lot of contracts in there, is that right? A valid marriage is not seen as valid if the persons involved are not legally able to enter into a contract. This includes, but not limited to: a person who is unable to make a decision due to mental capacity, a person under 18 years old, and if so, they do need the approval of their parents or guardians, a person who is married to someone else or a person who is closely related. Generally, all people who are of sound mind and above 18 years old are able to contract a marriage.

What I’m trying to get to is marriage is a legal binding contract and that’s what this is trying to explain to you. That is why after this ceremony is completed, both parties must sign their marriage certificate because they’re entering into a formal contract with each other and some would say God and also the country that they’re residing.

If you think about getting married, the ceremony is such that those involved say vows to each other, confirming their commitment, and telling the celebrant the couple really does love and care for each other because this is a binding contract in the eyes law. Everything we do and go about in the ceremony is, to reiterate, this is a formal agreement between two people. At the time, we just think of the love and the emotion that we’re going through throughout the ceremony but we must understand that we are going into a legal contract. That’s why we have to wait 12 months before we can actually get divorced or so that the courts will say that their marriage is over.

The court wants to make sure that you are over and they’ve given enough time to make sure that you haven’t reconsidered your option. Being apart can sometimes rebuild relationships, and other times, it just cements the decision. A 12-month period certainly shows the court that there is no hope for the couple to get back together and the relationship is done and dusted. But if you reconcile for three months or more after you have separated, then the 12-month period starts all over again. That happens sometimes with people that break up and then what they’ll do is they’ll move into different houses and then they’ll find that, “Oh, maybe I really do love this person and we’re going to try again.” They get back with each other and they’ll move in, they might stay together for six months and then they realize that there’s bigger issues here and we really can’t address them so we’ve got no choice but to go our separate ways. In some cases, they think that the separation time started from when they first originally separated but it doesn’t work that way. It will start from the date that they separate the second time. But if you’ve reconciled for less than three months, then it can start from the date that you originally separated from.

When does a 12-month period commence? You need to both agree on the date that the marriage is over. This can be the date either one of you made the fact clear. Crystal clear to the other. You can’t use just use the date you thought about in your head. You need to have verbally said the words to your partner. They need to be fully aware that the marriage is over.

You can start a 12-month period but still live in the same house. A certain must be met such as: sleeping in different rooms, not having holidays together and those sorts of things that show that you are still a couple. You’re pretty much living separate lives under the same roof, but both agree this is what is happening and you are separated. This sometimes happens due to finances and there’s no other alternative so couples just continue to live in the same house but in separate rooms. We even had a client that built a wall down their house. He had one side and she had the other and they continued to live under the same roof. That’s how they went about their life. They still had a title that was 50/50 on their property but they just ran completely independent lives of each other and that’s how they wanted to do it. It’s not something that I think is a really good idea because whilst a whole lot of other things happen in that relationship later on down the line when they needed to sell the house, it can get very confusing so you want to try and break ties once you know the marriage is over.

Like anything legally binding, to make it null and void is very expensive. Here in Australia and around the world, to end a marriage is far more complicated than just the process of getting the divorce which is the legal part of making the contract null and void. To be honest, in my eyes, the divorce is the most simplest or the easiest bit. The other stages involving the breakup of your finances, distributing of assets, looking after the children. Each of those areas is very emotional, and due to that can be highly costly.

Robert McClelland, who was a former attorney-general of Australia said in 2017, “If you are from middle Australia and you want to embark on a substantial piece of litigation, you really have to put your house on the line.” He’s saying that middle-class people, just to be able to fight in the court need to be prepared to lose their house. This settlement has also been echoed by the current attorney-general. He’s written, “Unless you are a millionaire or a pauper, the cost of going to court to protect your right is beyond you.” This is a social crisis in the making. The courts are there as guarantors of our rights, but increasingly, the cost of legal representation, the court fees mean that the ordinary Australian are forced either abandon their litigation claims or to enter the minefield of self-representation. That’s why if we can think differently and not go through the court process, it is so much better for everyone involved.

In some cases, people don’t need to get consent orders or parenting agreements in place. Some people can work all of these out themselves, but they still need to get the legal binding part done which is the divorce decree. Let’s walk through the steps involved in actually doing that part. We won’t worry about the others which is the financial agreement or the consent orders or the parenting arrangement in this podcast. We’re just going to talk about what the process is to walk through so this can help you.

This is pretty similar all around the world. You need to Google it and you can find out some information. It’s readily available online, but a lot of people that I talk to think that all they need to do is to wait 12 months and then everything is done. They think that the parenting, the financial, and everything is done all the one time. What we need to do is we need to get separation orders in place. To do that, we can file it online, and that’s what a lot of my clients do. Even though we are working with lawyers, in a lot of case, we would just do the orders directly online. If you want to go through a lawyer, they will fill the paperwork out and it might be something, if you’re very time-poor, that you get them to do. But if you’re not time-poor and you want to save some money, I’m going to step you through the process.

If you go online and attached to this podcast in the podcast notes, I’ve actually got a divorce kit that you can download and start filling in if you need to submit one. We want to start with a file application for the divorce. Once this is filled in, and there’s a few different ways we can go about this. We can do it as a sole applicant or we can do it as a joint applicant. If you do it as a sole applicant and you have children, the court will want you to come in when they hear your application. The reason being they want to make sure that the children are being looked after and that the two of you together are looking after their best interest. If you don’t turn up, then they’re going to ask some questions and they’re probably not going to allow it through if they’re unsure about the situation with the kids. That’s unless they’re 17 or something, but if you’ve got young children, they’ll want to ask you some questions. If you have a joint application and you have children, then you won’t need to go to court because the judge will understand that you’ve done a joint application, then obviously you’re amicable and the two of you are working together for the best interest of the family.

The other thing to take into consideration when you’re doing the application is it if either party has a pension or disability pension or something like that, you’d get a deduction on the application fee through the court. Let’s, for instance, think that you’re partner has a disability or is on a pension, if they do it, it’s only going to cost $300 opposed to $900 if you do it. It will have to be in their name because the bill will have to be in their name, obviously because they want to match up the pension and make sure- that’s why they’re getting a deduction. Once you’ve done that, then that person, unfortunately, is going to have to go to the court if you’ve got children. But if you haven’t got children, neither of you need to go.

You could then also, and I’ve had a few clients that have done this, as I’ve said, it’s $900 if you do the application fee yourself here in Australia. You could divide and both pay $450 each if you need to cut some costs. That’s something that I encourage for my clients but it’s up to you guys as to how you want to do it and if you want to save money or if you don’t.

What you need to do is when you download the document, it’s pretty much if you’ve got basic computer knowledge, is just sort of some ticks and some filling in some information and then uploading it to the portal. Once you’ve done the separation orders and you’ve submitted them to the court– Sorry. The file for the application for divorce, what happens if you’re a sole applicant, your partner who is going to be known as the respondent, they will need to be informed that you’ve filed for a divorce which means that you’re going to have to serve them. You can do that in two ways. You can do it in person or you can do it by post. In this podcast notes, I’ve also attached a link that you can go back and read how you can serve your partner if you are doing a sole application.

From the time that you filed the application for divorce and the time that you actually get this or heard is around a six to eight-week time frame. It depends on the amount of backlog that the court has, then it will be heard. You will get something in the mail that will explain to you that this is the date and the time that your application will be looked at before the court. As I said, if you’ve got children and you’ve done a sole application, it’s in your best interest to go. If it’s a joint application, not so necessary. Once the court has heard your application, if they are satisfied with everything that’s been written on there, there’s no mistakes, everything that’s been provided, then they will stamp that. What happens after that is the divorce or the decree becomes absolute or the marriage is over or dissolved, a month and one day after that date.

This whole period when you think about it, form the 12th month that you’ve separated, if you put in your application for divorce 12 months and one day after you separated, by the time you filed your application for divorce, you’ve served your spouse, your ex-spouse, if you’re doing a sole application, you’ve then been given the date for the court, the court has listened to your application and made sure that all of the due diligence has been done and it is in their best interest or your best interest to allow the divorce to move forward. A month after that, you get the decree absolute and your marriage is over.

Something else that in a lot of cases with my clients, they get a little bit nervous when they think that they have to go to court because this is not something we do on a day-to-day basis. Going to court sends shivers down people’s spines. Obviously, for us, when we’ve been growing up as children, the thought of court means that we’ve done something wrong. In this case, you haven’t done anything wrong. You’re going to just make sure and protect your own interest that everything has been ticked off and sorted out appropriately and it also means that you’re taking control of your future by having the strength to attend the court hearing. There’ll be other people in the same position as you are if you are the sole applicant and you’re sitting in a waiting room before you get called into court. It sounds really scary but I promise you, when you go there, there’s people that will help you. The magistrate will be lovely, they will talk to you and make you feel at ease and there’s really nothing to feel scared about.

If you’re from another country, I really appreciate you listening to this podcast and I understand that a lot of what we’ve spoken about possibly doesn’t relate to the law in your country, but if you Google application for divorce in the country that you live in, you will see that there will be plenty of resources very similar to what I’ve provided show notes for this podcast and you can do it yourself as well, but you need to be thinking outside the square. If you’ve got a lawyer, as your lawyer’s advice and do they think that it’s appropriate for you to go and do an application yourself or what’s their opinion of it and you need to take all of that on board before you take those next steps.

Thanks for listening, and I’d love you to like or subscribe or even leave just a comment would be wonderful. I will catch up with you next week in the podcast. Bye for now.

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