1. Getting a Divorce
My husband and I want to get a divorce. Where do we start? How can we get help with attorneys, legal fees and so on? What steps must we follow to get a divorce?
What Does the Law Say?
Divorce cases are heard in the High Court and in most Magistrate’s Courts. A law was passed recently that gave all regional magistrate’s courts jurisdiction to hear family matters. A divorce can be simple and cheap in these courts. This means that people wanting to get a divorce do not have to go to the cities to use the High Court to get a divorce. You can choose whether to do your divorce in the Family Court or the High Court.
What Can You Do?
Even when there is serious trouble in a marriage, sometimes the couple can avoid a complete breakdown. Before going to an attorney or the court for a divorce, the married couple could speak to a social worker or marriage guidance counsellor to see if they can solve their problems. Divorce is a last resort. The Family Advocate helps the Regional Court or High Court with divorce cases where there are minor children involved.
The Family Advocate works together with family counsellors in divorce and similar cases. Their main role is to work out what will be the best arrangement for children when the parents want a divorce. The Family Advocate is important because it allows the two sides to meet together with an independent person to sort out differences on the arrangements for the children. If the case goes to court then the Family Advocate will represent the best interests of the children in the trial.
A divorce can be defended or undefended.
- A defended divorce means that one partner wants a divorce and brings the case to court but the other partner does not want the divorce OR does not agree on how the property should be shared, or about the maintenance and custody arrangements. The other partner wishes to argue in court about these things. This is called defending the divorce action.
- An undefended divorce means the other partner agrees to the divorce AND agrees to the arrangements suggested by the divorcing partner. If a divorce is undefended the cheapest and quickest way to get a divorce is to use the Regional Court. (See: The Family Court)
If you cannot afford a divorce attorney you can get legal aid if you qualify according to the means test. (See: Applying for legal aid)
(See: Model letter: Request for social worker’s report to assist with application for legal aid)
A wife who wants to divorce her husband, but does not have enough money to pay for an attorney, can ask her attorney to claim some money towards her legal costs from her husband. If she needs support for herself and the children, she can ask her attorney to claim maintenance from her husband. A woman can also claim maintenance at the Maintenance Court from a husband who deserted her and the children. She can do this without consulting an attorney.
(See: Arrangements made at the time of the divorce)
If the divorce is undefended and there are no complications, you can cut out legal expenses and do the divorce yourselves. To do this you should check with the Registrar of the High Court or Regional Court.
| 1. Consultation with an Attorney | The spouse (husband or wife) who wants the divorce takes his or her marriage certificate and goes to see a lawyer. The spouse explains why he or she wants to get divorced. The attorney gives advice on whether there are proper legal grounds for divorce. You can also go to one of the volunteers at the Regional Family Court and they will assist you to fill out the forms. | |
| 2. Summons | The attorney or divorcing spouse draws up a summons against the other spouse. This is a document which tells the other spouse about his or her right to defend the divorce. The Registrar of the Court issues (stamps) the summons. | |
| 3. Particulars of Claim | The summons is attached to the Particulars of Claim. This document sets out the reasons for the breakdown in the marriage. It also sets out what the divorcing spouse claims, for example custody of the children. | |
| 4. Notice of Intention to Defend | The other spouse usually has 10 days to file (send to court) a Notice of Intention to Defend. If he or she does not do this within 10 days, the court sets a date for an undefended court hearing. If he or she does file the Notice within 10 days, then the spouses must send in their Pleadings. Pleadings are legal documents in which the husband and wife try to work out exactly what their claims and defences are. | |
| 5. Consent Paper | If the other spouse does not file a Notice of Intention to Defend or if the parties reach a settlement, where they agree on what should happen to the property, children and maintenance, they can write their agreement down in a Consent Paper. Then only the spouse seeking the divorce action has to go to the court hearing. Even if the divorce is defended at first, the parties can reach a settlement at any stage. They also write this down in a Consent Paper. Both the husband and wife sign the Consent Paper. When the divorce is granted, the magistrate makes the agreements in the Consent Paper an order of court. This means that if either person breaks the agreement on purpose, the court can send him or her to jail for contempt of court. Regardless of what the parties put in the consent paper, the court will make sure it is in the best interests of the children and ask for the recommendation of the Family Advocate. | |
| 6. The Court Hearing (Trial) | In an undefended case, only the spouse who seeks the divorce must attend the court hearing. The divorce only takes a few minutes. If the case is defended, both spouses must attend the court. If the spouse bringing the action proves his or her case, the court will grant a Divorce Order and also an order about the marriage property, care and contact in relation to the children, and maintenance. The court sends a copy of the Divorce Order to each spouse. At the Family Courts the Divorce Order must be collected. |
Using the Regional Court
A person using the Regional Court does not need to have an attorney. A person wanting a divorce can go to the court on any day during the week from 9 a.m. An assistant will help complete the necessary forms. A summons will be issued and then served on the spouse.
The divorce will take longer to settle if:
- The other spouse chooses to defend the matter
- There are children and this usually involves a Family Advocate.
If a couple doesn’t have children, a divorce can be finalised in about two weeks if it is not contested by either of the parties. They must both fill in a notice of non-defence. This only gets signed by the defendant when the summons is served on him/her. A date for the court appearance is then set. If one spouse refuses to sign the notice of non-defence when it is served with the summons, but does not defend the matter, it can take about five weeks to finalise. However certain courts are so busy that people sometimes wait longer than 6 months for a date for an undefended divorce.
If the couple has children, the Family Advocate will be involved to make sure that the interests of the children are seen to.
The costs of using the Regional Court are very low. Contact the Regional Court that is closest to you for information on up-to-date costs and procedures.
(See: The Family Court)
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