Separating from your spouse is not only a highly stressful and difficult time emotionally but can also be exceptionally hard on the pocket. Splitting a single household into two is never an easy task in the best of times. According to a report by the Australian Broadcasting Corporation posted on its website on 15 July 2024 (https://www.abc.net.au/news/2024-07-15/couples-delay-official-divorce-due-to-cost-of-living-pressures/104086442), it appears that in today’s cost of living crisis, separating couples are choosing to delay making an application for divorce due to financial pressures.

This brings up the question whether a separating spouse needs to appoint a lawyer to assist in making an application for divorce or can he or she self-represent in relation to the divorce application so as to save legal costs.

The short answer is that there is no requirement under the law for any party to the marriage to be represented by a lawyer when making an application for divorce.

Therefore, you can prepare and file the divorce application yourself and if a divorce hearing is required, you can be self-represented at the divorce hearing in the court. You will need to read carefully all the information available on the court website before preparing your application.

To ensure that you are on the right track and to address any complications that may arise in your case, it is best that you seek legal advice before embarking on your divorce application.

If you are thinking of making a divorce application without the assistance of a lawyer, it is important that you consider the following matters before filing the divorce application and if required obtain legal advice:-

• Whether your spouse is agreeable to the divorce or has made in clear to you that he or she will oppose the divorce application. If your spouse intends to object to the divorce application, you would benefit from obtaining legal advice as to whether the objection is valid or can be overcome.
• Whether parties lived or continue to live separately under the same roof during the required period of separation of 12 months. If this applies to your situation, you will need to file an affidavit from yourself as the applicant and another affidavit from an independent person to confirm that you and your spouse have led separate lives notwithstanding that both of you lived in the same house following separation. You will need legal advice on the content required in these affidavits that would satisfy the court that parties led separate lives under the same roof.
• If you have been married for less than 2 years, you would need to file a counselling certificate with the court to show that you and your spouse attended counselling before filing the divorce application. If you or your spouse do not wish to attend such counselling on account of special circumstances such as domestic violence or that a spouse is living overseas or cannot be located, you would need to file an application with the family court for an order permitting you to proceed with the divorce application without filing a counselling certificate. Here again, you will benefit from obtaining legal advice on the content required in the affidavit that would satisfy the court.
• Whether your marriage certificate is written in the English language – if not, you need to get it translated by a court accredited translator.
• If your spouse cannot be located for service of the divorce application to be effected. In these cases, you will have to apply to the family court for “personal service” on your spouse to be dispensed with and for a court order that “substituted service” be permitted. This would enable service of the divorce application by leaving the documents at certain premises or by means of social media where the divorce application would come to the attention of your spouse.
• If there is an international element to your divorce application such as where you or your spouse or both of you reside out of Australia, it is best to seek legal advice from the outset. Special rules may apply with respect to how the divorce application and other court documents are to be served on the other spouse and the evidence required to be filed with the court showing that the divorce application was served on your spouse.

Alternatively, you can take out the hard work required to get up to speed on all the requirements for a divorce application by appointing a lawyer to prepare and file the application and attend any divorce hearing on your behalf. In certain cases, you may also have to attend the divorce hearing together with your lawyer.

Contact us

For all enquiries on divorce applications or any other family law matter, please get in touch with the family lawyers at Robertson Hayles Lawyers at (08) 9325 1700 or by email at enquiries@robertsonhayles.com or via our contact form on our website, and we will be happy to assist you with your family law matter.

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.