By Gianna Huesch
What happens if your spouse refuses to agree to a divorce? Sometimes, a spouse may be so unwilling to get a divorce, they may simply refuse to sign the papers and hope that this stymies your divorce plans. In this situation, what are your options?
If you are ready to get a divorce but your partner is unwilling, it can be especially challenging emotionally, but legally, the path ahead is clear. Your partner is technically not obligated to sign the papers, but unless there are legal grounds for them to oppose the divorce—which are extremely limited–the divorce will in all likelihood still take place.
In Australia, the only grounds for divorce are that the marriage has broken down irretrievably and there is no reasonable likelihood you will get back together. Your spouse can oppose your divorce application, but only if they can show that the requirement of 12 months’ separation has not been met, or that the court does not have jurisdiction.
Whether your spouse wants to get a divorce or not, if you have fulfilled the requirement of being separated for 12 months and a day, including being ‘separated under one roof’ (ie, remaining living in the same house but as separated partners), you can go ahead and apply for a divorce. Note, however, that the court will only grant your divorce if it is satisfied that proper arrangements have been made for any children aged under 18 who are involved.
It’s acceptable to fill out a divorce application yourself (making a sole application as opposed to a joint application). You simply complete all the information about your spouse and for any questions where you don’t know the answer, you simply write “not known” on the papers. Once you’ve filled out your application, you are required to serve it on your spouse in order to notify them of the pending application. Together with your sealed copy of the Application for Divorce, you must serve your spouse with a copy of the court’s brochure “Marriage, Families & Separation”, and any other documents filed with the court except the marriage certificate.
It’s not possible for you to personally serve the documents on your spouse, and instead you need to arrange for someone 18 years old or older to serve the documents on your spouse. This person, known as the server, can be a family member or friend, or a professional process server. Service can be by post or by hand, and can be on your spouse personally or their lawyer, if their lawyer is willing to accept the documents. Documents must be served on your spouse at least 28 days before the court hearing if they live in Australia. If they are overseas, the requirement is that documents are served at least 42 days before the hearing.
If you’re serving your spouse by post, you’ll want to be confident they will actually sign and return the Acknowledgement of Service (Divorce) to you. However, if they have already indicated their unwillingness to comply with your wishes to get a divorce, this may well be wishful thinking, and service by hand will probably be necessary. If your spouse refuses to take the documents from the server, the server can place them somewhere in the presence of your spouse, stating what they are, and this will fulfill service requirements.
If you can’t find your spouse, and have taken all reasonable steps to locate him or her, it is also possible to apply to the court for an order to dispense with service or for substituted service.
Once you have served your spouse with divorce papers, they can file a formal Response. This is a document that expresses when someone opposes the divorce and the legal reasons why the divorce Application should be dismissed. Alternatively a spouse might agree to the divorce but wish to disagree with specific statements you’ve made in the Application, or draw attention to errors of fact, and these are then listed in the Response. The Response is then served on you or your family lawyer.
Do you need assistance with a divorce Application or a Response? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced lawyers here at Alliance Family Law on (02) 6223 2400. Your first half hour conference is free.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.