Ruqayyah Snyder
If you're considering a do-it-yourself divorce in Western Australia, it's important to be aware of the legal requirements and procedures. While it is possible to handle your divorce without a lawyer, it's crucial to understand the process to ensure a smooth and efficient dissolution of your marriage. The first step is to determine if you meet the grounds for divorce, which in Western Australia, is primarily based on the irretrievable breakdown of your marriage. This means you must have been separated for at least a year and a day with no possibility of reconciliation. Once you've confirmed you meet the criteria, you can proceed with either a sole or joint application, depending on whether you're applying for divorce by yourself or together with your spouse. The application process involves completing and submitting the necessary forms, providing evidence of your separation, and paying the court filing fee. It's important to be mindful of the potential challenges, especially when dealing with children, finances, and property matters. Seeking legal advice and utilising resources like the Family Court of Western Australia's divorce kit can help ensure you navigate the process correctly and protect your interests.
| Characteristics | Values |
|---|---|
| Application for Divorce Kit | Available for download from the Family Law Courts website for all Australian states and territories except Western Australia. |
| Divorce Service Kit | Available from the Family Law Court's website, along with a YouTube video explaining how to serve divorce papers. Applicable for all Australian states and territories except Western Australia. |
| Western Australian Kit | Available for serving your divorce application. |
| Application | Can be made by one person (sole application) or jointly by both spouses. |
| Marriage Certificate | Required to be filed along with the application. If the certificate is not in English, additional documents must be filed, including a translated copy of the certificate and an Affidavit of an approved translator. |
| Affidavits | Required if part of the 12-month separation period was spent living under the same roof. |
| Court Filing Fee | $1,100.00, unless entitled to a reduced fee of $365.00. |
| Divorce Finalisation | The divorce becomes final one month after the Divorce Order is issued to each spouse. The Divorce Order is usually issued at least four months after filing the application. |
| Grounds for Divorce | Marriage has broken down irretrievably, with no possibility of reconciliation, and spouses have lived separately for a continuous period of 12 months and one day before filing the application. |
| Proof Required | Evidence of separation, such as acting in a way that indicates to friends, family, neighbours, and employers that the marriage has ended (e.g., not socialising or entertaining together). |
| Joint Application Affidavits | Required from an independent third party, as well as from both spouses. |
| Sole Application Affidavits | Required from the applicant and an independent third party. |
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What You'll Learn
Divorce application kits for Western Australia
The process of applying for divorce in Western Australia involves several steps and requirements that must be carefully followed. While it is possible to complete a "do-it-yourself" divorce kit, it is recommended to seek legal advice to ensure a thorough understanding of the process and your rights. Here is a guide to help you navigate divorce application kits in Western Australia.
Understanding the Process:
Before initiating the divorce process, it is essential to understand the grounds for divorce in Western Australia. The only ground for divorce is that your marriage has irretrievably broken down, and you have been separated for at least one year and one day. Additionally, you must provide evidence of separation, such as living separately and behaving in a way that indicates the end of your marriage to those around you.
Obtaining the Correct Kit:
It is important to note that Western Australia has a separate divorce application kit from the rest of Australia. While the Family Law Court's website offers a Divorce Service Kit, this is not applicable to Western Australia. You can download the correct kit for Western Australia from the eCourts Portal website or the Family Court of Western Australia website.
Sole or Joint Application:
You can apply for divorce by yourself (sole application) or together with your spouse (joint application). If you are the sole applicant, you must serve the Application for Divorce on your spouse. In the case of a joint application, both parties must sign the application. For a joint application, you will need an affidavit from an independent third party, yourself, and your spouse. For a sole application, you will need two affidavits—one from yourself and one from a third party.
Required Documents:
Regardless of the type of application, you must provide a copy of your marriage certificate. If your marriage certificate is not in English, it must be translated, and the translator must complete an Affidavit Translation of Marriage Certificate, attaching the translation and their qualifications. Additionally, if you spent any part of your separation period living under the same roof, you must provide affidavits regarding this arrangement.
Court Filing Fee:
When filing the Application for Divorce, there is a court filing fee of $1,100.00. However, you may be entitled to apply for a reduced fee of $365.00 under certain circumstances.
Timing and Finalisation:
It typically takes at least four months for a Divorce Order to be issued from the date of filing the application. The divorce becomes final one month after the issuance of the Divorce Order, and you cannot remarry until this point.
In conclusion, while divorce application kits provide a framework for navigating the process, it is important to be aware of the specific requirements and considerations for Western Australia. Seeking legal advice can help ensure that you correctly follow all procedural steps and protect your interests during this challenging time.
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Court filing fees
When filing for divorce in Western Australia, there are a number of fees to be aware of. Firstly, the Court Filing fee is $1,100. However, if you are eligible for a reduced fee, this amount is $365. These fees can be paid online when eFiling using the Commonwealth Courts Portal. It's important to note that filing fees must be paid before submitting your application and are non-refundable.
If you are unable to pay the filing fee with a credit or debit card, you can purchase a prepaid debit card from most retail outlets for a small fee. Additionally, if you are unable to eFile, you can contact the Court to obtain the necessary forms and advice on how to file.
In addition to the Court Filing fee, there may be additional fees depending on your specific circumstances. For example, if you are filing for divorce by yourself (known as a sole application), you will need to serve the Application for Divorce on your spouse. This will incur an additional fee for the Affidavit of Service, which must be filed with the Court as proof of service.
Furthermore, if you are seeking arrangements regarding children, finances, or property, these require separate applications and may have associated fees. It's important to review the specific requirements and fees for your situation, as the Court may not grant your divorce if you do not correctly follow all the procedural steps.
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Evidence of separation
To get a divorce in Western Australia, you need to show that your marriage has 'irretrievably broken down'. This is demonstrated by being separated for 12 months or more, and there being no likelihood of the relationship resuming.
If you are filing a joint application, both parties should file an affidavit. In both types of applications (sole and joint), you should also ask a third person to file an affidavit to corroborate your evidence. This could be a friend, family member, neighbour, or employer who can attest that you have separated and your marriage has ended. If you are filing the application on your own (a sole application), then you will need to arrange service of a copy of your application, and the Marriage, Families and Separation brochure, on your spouse. The person who served the application will need to complete an Affidavit of Service.
If you have been separated and living in the same residence for any part of the twelve months prior to filing your application, you will need to provide extra evidence to prove that there has been a change in the marriage by preparing and filing an affidavit. If you have been married for less than two years, you will need to attend counselling with a family counsellor and file a counselling certificate or get permission from the court to apply for a divorce without the certificate.
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Preparing for the divorce hearing
Secondly, whether you are filing a sole or joint application, you must pay the Court Filing fee. The standard fee is $1,100, but a reduced fee of $365 may be available depending on your circumstances. Check the current fees to confirm.
Thirdly, if you have children under the age of 18, you must address their day-to-day care, maintenance, and welfare arrangements. The court must be satisfied that proper arrangements are in place, but agreeing to a divorce does not mean you agree to the specific arrangements for your children. If you wish to seek orders regarding children and finances or property, separate applications must be filed.
Fourthly, be aware that a divorce hearing is only required under certain conditions, such as when the applicant wishes to attend, the respondent has requested to attend, or the respondent opposes the divorce. Divorce hearings are conducted electronically by phone, and you can indicate your desire to attend even if not required. Attending the hearing is advisable if you need to provide additional affidavit material or explain particular circumstances that may impact the outcome.
Finally, if your marriage lasted less than two years, it is considered a "short marriage" under Australian law, and you must attend counselling with your spouse to discuss the possibility of reconciliation. The court will require an Attendance at Counselling Certificate from a professional counsellor before granting a divorce. If counselling is not attended, an affidavit must be filed, explaining the reasons for non-attendance.
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How divorce affects your will
In Western Australia, a divorce order from the Family Court impacts the validity of your will. Unlike marriage, a divorce does not revoke an existing will in its entirety, but it does revoke any provisions concerning your former spouse. A divorce automatically revokes any reference to your former spouse in your will, but the rest of the will remains valid. This means that all references to your former spouse in your will become void, while the rest of the document stays intact.
In Western Australia, from the moment you separate until you obtain a divorce order from the court, your will remains valid. However, it is important to note that if you have named your separated spouse as your executor, they will be able to administer your estate according to the terms of your will, including any distributions provided for them as a beneficiary. Therefore, if you wish to change your will in anticipation of a divorce, it is recommended to seek legal advice to ensure that your estate planning documents remain relevant to your specific circumstances.
In the case of de facto couples, separation affects an estate plan similarly to divorce. When a de facto relationship ends, the provisions in a will in favour of the former partner are revoked. This is because de facto couples have the same property settlement rights as married couples in Western Australia.
It is important to update your will to reflect changing life circumstances, such as divorce or separation, to ensure that it still aligns with your wishes and protects your family, children, and property. Failure to make the necessary changes can result in your estate being distributed according to the laws of intestacy if there are no substitute appointments in your will.
To summarise, while divorce does not invalidate your entire will in Western Australia, it does revoke any mentions of your former spouse. It is crucial to review and update your will during life changes to ensure it accurately reflects your intentions.
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Frequently asked questions
A 'do-it-yourself' divorce kit in Western Australia is a set of documents that can be used to file for divorce without the assistance of a lawyer. It is applicable for all Australian states and territories except Western Australia, which has its own kit.
The process for filing for divorce in Western Australia involves submitting a completed and signed application for divorce, along with the required supporting documents, to the Family Court of Western Australia. The application can be made by one spouse (sole application) or by both spouses jointly.
The requirements for a divorce application in Western Australia include providing evidence of separation, such as affidavits from independent third parties, and a copy of the marriage certificate. If the certificate is not in English, it must be translated, and additional documents must be provided.
The court filing fee for a divorce application in Western Australia is typically $1,100. However, individuals who are eligible for a reduced fee can pay $365. It is important to note that the court may not grant the divorce if all procedural steps are not correctly followed.
