How to Get Divorced

I would say 75% of people I speak with have no idea how to get divorced. And why should they? No one gets married thinking; one day they will break up and get divorced. Most folks believe after 12 months of being separated, they submit a document to the court. And then it’s all done, completed, finished.  Unfortunately, for the majority of people who have a house, a car and kids, it is a lot more complicated than that.  How to get divorced

The Legal Definition of Marriage

Upcounsel.com a trusted American site defies Marriage as the following. 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 ought to exist between husband and wife.

Validating a Marriage

To make a valid marriage, the parties must be able to contract and then be contracted and overall be willing to contract.

Pardon, you might say.  So what does that mean:

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 decide due to mental capacity. A person under 18 years old,(if so they need the approval of their parents or guardians). The person is still married to someone else, or the person is closely related.

Generally, all people who are of sound mind, and above 18 years old, can contract marriage.

That is why after the ceremony is completed, both parties must sign the marriage certificate. They have just entered into a formal contract with each other and some would say god and the country they reside in.

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 that the couple loves and cares for each other. Because this is a binding contract in the eyes of the law and there is no getting out of it quickly. Or at least without the help of the courts.

How to get divorced

So why 12 months and not as soon as you have decided the marriage is over? Well, the court wants to make sure that your relationship is finished. And you haven’t made a mistake, therefore allowing enough time to consider your options and be sure. Being apart can sometimes rebuild relationships, and other times it just cements the decisions. A 12 month period indeed shows the court that there is no hope of the couple getting back together. The relationship is let’s say ‘ancient history’.

If you reconciled for three months or more, then the 12 month time period starts again.

So when does the 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 to the other person. You can’t just use the time you thought about it ending, in your mind. You need to have verbally said the words to your partner. They need to be fully aware that the relationship is over and you are separating.

You can start the 12 months by still living in the same house, but specific criteria must be met. Such as sleeping in different rooms, not having holidays together, no sexual relationship, etc., Pretty much living separate lives under the same roof and being independent of each other. But both agreeing that is what is happening. These situations are rear but sometimes occur due to financial circumstances. And as a couple, you have no surplus money for one person to relocate or any family members for them to move in with.  Therefore, there is no other alternative than selling the family home, and the couple split the proceeds, going their separate ways. How to get divorced.

If during your time apart, you reconcile for longer then three months then your date of separation will start again. I often see this with couples, who think they will give it a second try and get back together for six months only to realise they need to commence all over again. It can be frustrating, but it is better to be sure then to regret your decision, as the grass is not always green on the other side. How to get divorced

And like anything legally binding, to make it null and void is expensive.

Here in Australia and around the world to end a marriage, is far more complicated than just getting a divorce. Divorce is the legal term meaning the termination of a marriage by legal action, requiring a petition or complaint for divorce.  To be honest, in my eyes the legal divorce piece of the process is in most cases the easy bit.  The other stages which involve breaking up your finances, distributing assets, paying out debts and looking after the children, can be harrowing.  Each of those areas is very emotional and due to that can be very costly. How to get divorced

Robert McClelland, former Federal Attorney General, said in 2017,

If you are from middle Australia and you want to embark on a substantial piece of litigation, you have to put your house on the line.

This sentiment has been echoed by our current High commissioner to the UK when he was attorney-general George Brandis, who has written that “unless you are a millionaire or a pauper, the cost of going to court to protect your rights is beyond you”.

Now, this is the same all around the world, so the question I ask is why do people continue going down this track?

The answer is most people don’t know how to tackle this themselves. So let me walk you through the stages on how to get divorced.

The first stage How to get divorced

is making sure you and your partner agree on the date of separation and then 12 months and 1-day minimum, from that date, you can file your application for divorce. This can be filled in and submitted by your lawyer, or you can do it yourself online. Given I am all about saving money, it is not difficult to do if you have a basic knowledge of computing skills and you can then go through and tick the boxes and fill in the relevant information. I have attached a link to the Australia Divorce Kit here. The application is uploaded to the court portal, and you pay when you press submit.

Here in Australia if you are on a pension, you get a discounted rate. But be aware the person applying must be the person on a pension. So in other words, it can’t be a joint application or a sole application in the name of your partner.

In some case, you can do it together (joint application) and split the fee with your partner. If you have children, this is the best way; otherwise, you will need to attend the court hearing to confirm the children are well cared for. But, please don’t worry, if you are not amicable. You can still make a sole application in your name. It just means you will need to attend court at a later date to confirm with the magistrate you have an agreement in regards to the children and they are safe and happy.

Whoever investigates or submits the divorce application will need to pay the fee to the court. If you are doing it yourself, it is around $900.00, if you are on a pension then $300.00.

Stage Two, How to get divorced

Once submitted, if it is not a joint application, your ex-spouse will need to be served the documents on your ex, and they are called the respondent.  So how can you serve your spouse? Please watch this video which explains in detail.

This whole process so far will take between 6 – 8 weeks depending on the workload of the court and confirming you have filled everything in correctly and served the documents.

Just remember you don’t need to serve the documents on your spouse if it is a joint application.

Now I want to take a moment to touch on the court. l am sure like most people who have made a sole application the thought of going to court alone, sends shivers down your spine. The word Court can be intimidating. It implies having done something wrong, breaking the law, being in trouble. And if you haven’t gone through enough, having the strength to face a judge, will send you weak at the knees. But please trust me when l say, it is not that bad. The court and its staff, see people like you every day and understand that you are outside of your comfort zone. You are only there to confirm the children are being cared for appropriately and there are no problems….isn’t that what you want from a system. To protect the well being of your kids?

Stage Three, How to get divorced

You will receive a date and time in the mail confirming your divorce decree hearing. If you don’t need to attend, then it is usually a straight forward tick and flick by the magistrate. If you do need to attend then questions may be asked of you, no more then 5 – 10 minutes and then you are done.

Stage Four, How to get divorced

One month and one day later by mail, you will both receive in writing, confirmation your marriage contract is now absolute and dissolved. The agreement with your ex is now over. You then have the choice to have a divorce party, or if you are anything like me, cry with relief.

Below is a diagram which may help illustrate the different stages on how to get divorced and l also uploaded a podcast on this very topic, how to get divorced, listen here.

Steps needed to get divorced

 

If you need any help and support in this area and want to find out more about how to get divorced. Please contact my office at admin@tanyasomerton.com, as we would love to help you through this challenging time. You can find out more of what we do at my websites, www.tanyasomerton.com or www.divorceangel.com.au. Or pick up a copy of my book The Jelly Bean Jar – Empowering Independence through divorce to understand how to navigate the divorce process and save time money and emotions.