Family Law 101 workshop

How to DIY Divorce

Presented by

Family Law 101

Leila Fisher, solicitor

© Leila Fisher 2022

Disclaimer
The information contained in this workshop is for general education on matters of interest only.

The information on this site is provided with the understanding that the authors and publishers are not
engaged in providing legal or other professional advice and services. It should not be used as a
substitute for legal advice.

While we have made every attempt to ensure that the information has been obtained from reliable
sources, the author is not responsible for any errors or omissions, or for the results obtained from the
use of this information. All information is provided "as is", with no guarantee of completeness,
accuracy, timeliness or of the results obtained from the use of this information, and without warranty of
any kind, express or implied.

In no event will the author or its agents or employees be liable to you or anyone else for any decision
made or action taken in reliance on the information in this workshop or for any consequential, special
or similar damages, even if advised of the possibility of such damages.
 Workshop
program
• Part 1 The law

• Part 2 Application process

• Part 3 Service

• Part 4 Hearing

• Part 5 Special situations

 No fault
Children
principle

Jurisdiction Implications
Part 1

The law Irretrievable

breakdown

Separation
Where can I
find the law?
• Family Law Act

Family Law Act 1975 (legislation.gov.au)

• Family Law Rules

Federal Circuit and Family Court of Australia (Fa

mily Law) Rules 2021 (legislation.gov.au)

• Divorce Practice Direction

Family Law Practice Direction – Divorce procee
dings | Federal Circuit and Family Court of Aust
ralia (fcfcoa.gov.au)

• Federal Circuit and Family Court of Australia

(FCFCOA)

Division 2
No fault
principle
• Doesn’t matter who made the
decision to separate or for
what reason
- Marriage in Australia / overseas

- Answer YES to at least 1 of 4 questions

Australian citizen

permanent resident

Ordinarily live in Oz and continually

for last 12 months

Regard Australia as home and intend live

indefinitely
(lawfully present in Australia)
Irretrievable breakdown of marriage

No chance of getting back

together
NOPE

NOPE

NOPE
Separation

• Separated for 12 months + 1 day

• If get back together for < 3 months

doesn’t break chain
Arrangements for children

• Doesn’t have to be formal

• Whether orders in place

• Live with

• Spend time and communicate with other parent

• Financial support

• Health

• Education
Implications of divorce
• Your spouse is no longer your husband or your wife

• Your legal connection with your former spouse is now severed

• You then only have 12 months to apply to the Court for any Orders you
may need for property settlement (if you haven’t already done this)

• Divorce revokes parts of a Will that made gifts, appointments or some

powers to the former spouse. It treats the provisions of your Will as
though your former spouse has died before you. There are exceptions.

• You become free to marry again

END OF
PART 1
 Register
Supporting
comcourts
documents

Joint File
Part 2

Application process Sole Fees

Application
Register for Comcourts

www.comcourts.gov.au
Joint / Sole

Joint

• easiest, don’t have to serve on OP, don’t have to attend hearing

Sole

• more documentation, have to serve on OP, file the service

documents, attend court if kids U18
 1. Electronically within the comcourts portal
www.comcourts.gov.au

2. Download DIY Kit

Application DivorceKit_0921V1.pdf (fcfcoa.gov.au)

Call 1300 352 000 or live chat on the website

www.fcfcoa.gov.au
Supporting documents

Marriage certificate

• Photocopy is fine (does not have to be certified)

Court order / parenting plan

• If children U18 (optional)

Fee reduction

• DHS card or Financial Hardship

Other

• Marriage < 2 years, marriage certificate not in

English, Affidavit separated under one roof
File

1 2 3

Sign Affiavit of Upload Divorce online: a

efiling supporting step by step guide
documents for doing your on
line divorce applic
ation in Australia
| Adieu
Fees

Standar •$940
d

Guidelines for reduced fee - divorce and decree

of nullity application | Federal Circuit and Family

•$310
Court of Australia (fcfcoa.gov.au)

Reduced
Application for reduction of payment of divorce
or decree of nullity – financial hardship | Federal
Circuit and Family Court of Australia (fcfcoa.gov.
au)
END OF
PART 2
 Respondent /
lawyer

Hand or Post
Part 3

Service Documents

File served
documents
 Post – if you think the
OP will sign the
acknowledgment
By hand or
post
By hand
• you cannot serve
• process server ($90)
• Friend / family member >
18
Documents to serve on Serve on Respondent
a)sealed copy of Application for Divorce and
Respondent supporting documents except marriage
certificate;
b)the Marriage, Families and Separation
brochure;

Marriage, families and separation (prescribe

d brochure) | Federal Circuit and Family Cou
rt of Australia (fcfcoa.gov.au)
If by post within Australia:
(i) an Acknowledgment of Service (Divorce);
and
(ii) an envelope that is pre-addressed to the
applicant’s address for service and has the
correct postage for the return of the
Acknowledgment of Service (Divorce); or
If by hand, an Acknowledgment of Service
(Divorce).
Divorce Service Kit (do it yourself kit) | Feder
 • If served by Post:

Affidavit of Service by Post (Divorce) Applicant

Acknowledgment of Service (Divorce) Respondent

eFile served
documents • If served by hand

Affidavit of Service by Hand (Divorce) Server

Acknowledgment of Service (Divorce) Respondent
Affidavit proving signature Applicant
END OF
PART 3
 Electronic

Microsoft
Part 4 Teams

Hearing Phone

Judicial/Deputy
Registrar
 • 42 days / 56 days after filing

Hearing
• Court inform you of time and date (check comcourts)
• 3-5 minutes

• Hearing in absence unless:

 Sole applicant + kids U18

 Response to Divorce filed by Respondent (eg oppose
divorce)
 Issues with service (can’t find or can’t serve Respondent
 Respondent requests proceedings not be heard in absence
(by written notice within 7 days of hearing)

• Divorce order granted on day

• Divorce order final after 1 month (in case change mind!)

END OF
PART 4
 Issues with
marriage
certificate

Separated
living under
Part 5 one roof

Special situations Can’t serve

Short
marriages < 2
years
 NOT IN ENGLISH
• Copy of marriage certificate +
• a translation of the marriage certificate in English; and
• an Affidavit – Translation of Marriage Certificate by the person who made the translation verifying
the translation and setting out the person’s qualifications as a translator

•Affidavit translation of marriage certificate | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

Issues with UNABLE TO FILE

Marriage
Either:

file an affidavit addressing the following:

Certificate • why the marriage certificate is unable to be provided;

• details about the marriage ceremony, including time, place and form;
• where appropriate, the requirements of a valid marriage in the place where the marriage ceremony
took place; and
• confirmation that the parties recognised one another, and were recognised by others as spouses
following the marriage ceremony
Affidavit | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)
OR
provide an undertaking, satisfactory to the Judicial Registrar or Deputy Registrar, to file the marriage
certificate within a specified time. They will tell you the form of undertaking.
Separated living under one roof
File 2 affidavits with Application for Divorce Affidavit | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

Sole - You +one written by another person who has seen or heard about you and your spouse being separated under
the same roof. This person will most likely be a family member or friend

Joint – You + Spouse / Either of you + one written by another person as above

Example 1

Separated for 14 months Lived in the same home for 5 months after separation. (Of 12 months, 9 months outside home and 3
months under one roof.) Must provide extra information

Example 2
Separated for 5 years Lived in the same home for 3 years after separation. Past 2 years lived in different homes Do not need to
provide extra information to the Court
Separated under one roof Affidavit
If you are still living at the same address at the time you apply for divorce, you will need to explain what your
plans are for living arrangements in the future. The court might not grant divorce if you keep living together. Set
out arrangements during marriage and marriage after separation.
 change in sleeping arrangements

 reduction in shared activities or family outings

 decline in performing household duties for each other

 division of finances; for example, separate bank accounts, and

 any other matters that show the marriage has broken down; for example, if you have notified family and friends of your
separation.

 Why you continued to live in the same home following separation and what intention, if any, you have of changing the
situation.

 Living arrangements you made for any child of the marriage under 18 years during the time you were living under one
roof.

 What government departments you have advised of your separation if you receive a government benefit; for example,
Centrelink or Services Australia (Child Support). If correspondence has been received from these departments about
your separation, attach a copy to your affidavit.
Can’t serve Respondent
File Application in a Proceeding + Affidavit

• Substituted
Eg by email, Facebook messenger, Whatsapp, serve on 3rd party who can bring to their attention

• Dispensation

Do not need to serve, court just rely on your paperwork. Exceptional circumstances only

What you need to tell court:

The Court will need to know more about when you last had contact details for your spouse, whether you know anyone else who
might know where they are, and if there are any risks for you if they are located.

In affidavit state cannot find / serve Respondent, what reasonable measures taken to eg process server, evading service, contacted
relatives, have no idea where they are. Request dispense with service or serve document in another way.

Application in a proceeding | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

Affidavit | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

Short marriage < 2 years
File Counselling Certificate / Affidavit

• Calculated from date of marriage to date of filing Application for Divorce

Attend counselling (counselling certificate)

• Ask the counsellor to complete the counselling certificate that states they have discussed the
possibility of reconciliation with you and your spouse.
Counselling certificate for applicants married less than 2 years | Federal Circuit and Family Court of Australia (f
cfcoa.gov.au)

OR

If you cannot attend counselling (Affidavit)

•  you will need to file an Affidavit explaining why you and your spouse cannot attend counselling or any
special circumstances why you cannot attend. Request court’s permission to apply for a divorce

Examples:
if you can not locate your spouse, explain the attempts you have made to find them. Or, if
your spouse refuses to attend counselling, explain the attempts you have made to invite them to
attend. Or if there is a history of violence and abuse in the marriage and it is not safe for you to
attend counselling with your spouse.
END OF
WORKSH
OP
Thank you

• Good luck with your matter

• Keep learning