When a marriage breaks down, most couples mutually decide to divorce. But what if one person wants a divorce and the other doesn’t? Can you get divorced if your spouse refuses to cooperate?
Yes, you can, but the process isn’t as straightforward as a joint divorce application and may take a little longer.
What happens if your ex won’t sign divorce papers?
Australia follows a “no-fault” divorce system, which means the court does not need to know the reasons for wanting a divorce. The only legal ground for divorce is that there has been an irretrievable breakdown of the marriage. This is evidenced by living separately for at least 12 months before filing for divorce.
If you meet this requirement, you can proceed with a sole divorce application even if your spouse refuses to cooperate.
Here are the steps to follow:
- Complete the application for divorce and affidavit of service forms. In a sole application, the respondent (your ex) will not need to sign the application.
- Serve the divorce documents on your spouse. You can’t serve the divorce application yourself. You will have to use a third party, which can be a friend, family member or a professional process server. The server must be over the age of 18.
- Alternatively, you can send the documents via registered post. If you choose to post, make sure you have the correct address for your spouse. If they have moved, the documents may not reach them.
- Once your spouse has been served, you can proceed with filing the divorce application in the Federal Circuit and Family Court of Australia. Your spouse will have 28 days from the date they were served to file a response with the court.
- Attend the divorce hearing, if applicable. If you have children under 18 years old or your spouse contests the divorce, you will be required to attend the hearing.
If you have been married for less than two years, there is an additional step to follow. You have to attend family relationship counselling to attempt a reconciliation. If reconciliation fails, the counsellor will sign a counselling certificate and confirm that the marriage is irreconcilable. You will add this to your divorce application.
Once you have submitted the relevant documents and satisfied all of the court’s requirements, it will grant the divorce.
Factors that can delay a sole divorce application
It can take longer to finalise a sole divorce application in the following circumstances:
- Your spouse hasn’t received the divorce application because they relocated and didn’t inform you of their new address, or your registered mail package didn’t reach them. The court may delay the divorce proceedings until you prove you have taken all reasonable steps to locate them.
- Your spouse refuses to sign the acknowledgment of service form. In this case, the nominated server will have to mark this refusal on the affidavit of service and sign it in front of a Justice of the Peace. If you have sent the divorce papers to your spouse by registered post and they refuse to sign and return the acknowledgment of service, then you will need to have the papers served on them by hand.
- Your spouse is contesting the divorce. This could be because they disagree with the contents of the Application or that there was a short period of reconciliation, which may affect the 12-month separation requirement.
Seeking legal advice when your spouse won’t sign divorce papers
Navigating a divorce by yourself can be complicated. That’s why it’s advisable to seek legal support. An experienced family lawyer can help you understand the process and assist with your divorce application, allowing you to move forward with your life much sooner.
As a specialist family law firm serving the Gold Coast, our experienced team of solicitors can guide you through a divorce or separation. To discuss your situation, call 1300 BGM LAW, email info.bgm@bgm.legal or fill in this form.
