This article was written by Melinda Gao Principal Solicitor at W & G Lawyers.
A common question in Australian divorce consultations is: Can I still get divorced if my spouse refuses to agree, will not sign the documents, or cannot be located?This concern arises particularly often in sole divorce applications.
Under Australian family law, divorce does not require the consent of both spouses. Even if one spouse refuses to cooperate or respond, a sole divorce application can still proceed, provided the legal requirements are met.This is an area of law that is frequently misunderstood.
If I Don’t Sign, You Can’t Divorce Me
We once assisted a client whose marriage had effectively ended many years earlier.
The parties had been separated for a long time. They were no longer living as a married couple, and there was no realistic possibility of reconciliation.
However, whenever she raised the issue of divorce, her spouse would say:
“I do not agree to the divorce.”
“I will not sign anything.”
“If I refuse to cooperate, you will never be able to divorce me.”
Over time, he reduced contact with her, changed his address and stopped responding to her messages.
As a result, our client believed that she could not formally end the marriage unless he signed the divorce documents or attended court.
She felt unable to begin a new chapter in her life. She was also unable to confidently plan her property affairs, estate planning or future family arrangements.
What was keeping her trapped was not only a marriage that had ended in every practical sense, but also her misunderstanding of the Australian divorce process.
Australia Has a No-Fault Divorce System
Australia operates under a no-fault divorce system.
The Court does not ordinarily need to determine why the marriage ended. It will not decide whether to grant a divorce based on whether one spouse had an affair, left the family home, caused arguments or was more responsible for the breakdown of the relationship.
The Court is primarily concerned with whether:
- the marriage has broken down irretrievably;
- the parties have been separated for at least 12 months; and
- there is no reasonable likelihood that they will resume married life.
The Federal Circuit and Family Court of Australia explains that the only legal ground for divorce is that the marriage has broken down irretrievably and there is no reasonable likelihood of reconciliation.
Accordingly, even if the other spouse:
- does not agree to the divorce;
- refuses to sign documents;
- does not respond to messages;
- refuses to attend the hearing;
- deliberately causes delay;
- lives overseas; or
- can no longer be located,
this does not mean that the marriage can never be legally ended.
The real issue is usually not how to persuade the other spouse to “agree” to the divorce. It is how to satisfy the legal requirements and properly complete the Court process.
A Sole Divorce Application Does Not Require the Other Spouse’s Agreement
In Australia, a divorce application may be made jointly by both spouses or solely by one spouse.
An application made by only one spouse is known as a sole application for divorce.
When a sole application is filed, the other spouse is not required to sign the application or consent to the divorce. The Court process allows one spouse to independently commence divorce proceedings.
However, the applicant will generally be required to formally serve the divorce documents on the other spouse so that they are made aware that the proceedings have commenced.
A common misunderstanding is:
If the other spouse refuses to sign for the documents, it means they have refused the divorce.
This is incorrect.
Acknowledging receipt of Court documents is not the same as consenting to the divorce.
When the other spouse signs an acknowledgment of service, they are usually only confirming that they have received the documents. Their signature does not mean that they agree to the Court granting the divorce.
Can Service Be Completed if the Other Spouse Refuses to Sign?
In a sole divorce application, the applicant will generally not be permitted to personally hand the divorce documents to the other spouse. Service must usually be carried out by an appropriate third party in accordance with the Court rules.
If the other spouse is located in Australia, the divorce documents will generally need to be served at least 28 days before the hearing date.
If the other spouse is overseas, the documents will generally need to be served at least 42 days before the hearing date.
Where service is attempted by post and the other spouse refuses to sign and return the acknowledgment of service, the applicant may not be able to rely on the postal documents alone as proof of service.
However, this does not mean that the divorce proceedings must come to an end.
Depending on the circumstances, the applicant may need to:
- arrange for a third party to personally serve the documents;
- ask the other spouse’s solicitor to accept service;
- provide other evidence showing that the other spouse received the documents; or
- apply to the Court for an alternative method of service.
The key issue is not whether the other spouse is willing to “cooperate with the divorce”. The key issue is whether the Court can be satisfied that the other spouse has been properly informed of the proceedings.
Being Unable to Locate Your Spouse Does Not Necessarily Prevent a Divorce
Some spouses have had no contact with each other for many years.
The other spouse may have:
- moved away from their last known address;
- changed their telephone number;
- deleted their social media accounts;
- left Australia;
- stopped communicating with mutual friends or relatives; or
- deliberately concealed their location.
These cases can be more complicated than an ordinary divorce application. However, the Australian Court system provides procedures to deal with these circumstances.
If an applicant has taken reasonable steps to locate and serve the other spouse but has been unsuccessful, they may consider applying for:
- substituted service, which allows the documents to be served in a way other than ordinary personal service; or
- dispensation of service, which allows the usual service requirement to be waived in appropriate circumstances.
The applicant will need to explain the reasonable steps they have taken to locate and contact the other spouse.
Dispensation of service is a significant procedural order. It usually requires sufficient supporting evidence and will only be granted where the Court considers it appropriate.
An applicant may retain evidence such as:
- records of documents sent to the other spouse’s last known address;
- records of enquiries made with mutual friends or relatives;
- emails, text messages or social media messages;
- details of the other spouse’s last known workplace;
- results of public searches or enquiries;
- information about whether the other spouse remains in contact with family members; and
- evidence that the other spouse continues to use a particular telephone number, WeChat account or email address.
The Court will want to know whether the applicant has made genuine and reasonable attempts to locate the other spouse. It will generally not be sufficient to simply say, “I do not know where they are.”
What Happens if the Other Spouse Opposes the Divorce?
The other spouse may file formal documents opposing the divorce application.
However, simply saying, “I do not want a divorce” will not ordinarily be enough to prevent the Court from granting one.
The other spouse may raise a substantive dispute about matters such as:
- whether the parties have been separated for at least 12 months;
- whether the separation date stated in the application is correct;
- whether the parties resumed married life during the separation period;
- whether the Court has jurisdiction to determine the application;
- whether the marriage is legally valid;
- whether the application was properly served; or
- whether the application contains a significant error.
If the other spouse formally opposes the divorce, the Court will consider the legal and factual grounds they have raised. It will not simply consider whether they personally wish to remain married.
A person who files a formal Response to Divorce will generally be required to attend the divorce hearing and explain the basis of their opposition.
You May Still Apply for Divorce if You Remained Living in the Same Home
In practice, some couples end their marital relationship but continue living at the same address because of mortgage repayments, rent, children, financial pressure or housing difficulties.
This is known as:
separation under one roof.
Living in the same property does not necessarily mean that the parties have continued living together as a married couple.
The Court may consider matters including:
- whether the parties began sleeping in separate rooms;
- whether they continued sharing meals and household duties;
- whether their finances were separated;
- whether they continued attending social events as a couple;
- whether they told family members or friends that they had separated;
- whether they continued an intimate relationship; and
- whether their day-to-day living arrangements and care for one another changed.
If some or all of the 12-month separation period occurred while the parties were living under the same roof, more detailed evidence and affidavit material will generally be required.
The date of separation is therefore not necessarily the date on which one spouse moved out of the family home.
The central issue is whether the marital relationship had ended in substance and whether this can be demonstrated through evidence.
Can You Get Divorced if You Have Children Under 18?
Having children under the age of 18 does not prevent parents from applying for divorce.
However, before making a divorce order, the Court will generally need information about the children’s current arrangements, including:
- who the children live with;
- how they spend time or communicate with the other parent;
- their school or kindergarten arrangements;
- their health and medical needs;
- their day-to-day care;
- their financial support; and
- where there is no contact with a parent, the reasons for that lack of contact.
A divorce application does not automatically determine where the children will live, nor does it automatically result in parenting orders.
The Court must be satisfied that proper arrangements have been made for the children, or that there are circumstances in which the divorce should nevertheless be granted.
Divorce proceedings and parenting proceedings are legally separate matters.
Divorce Does Not Mean Your Property Has Been Divided
Another common misunderstanding is:
We have not finalised our property settlement, so we cannot apply for divorce yet.
In fact, divorce, property settlement, spousal maintenance and parenting arrangements are related but legally separate issues.
A divorce order does not automatically:
- divide real estate;
- distribute bank accounts;
- divide companies or trusts;
- divide superannuation;
- determine where children will live; or
- bring every financial connection between the parties to an end.
However, after a divorce order becomes final, married parties will generally have 12 months to commence proceedings for property adjustment or spousal maintenance.
If that period expires, a party will usually need to obtain special permission from the Court before commencing proceedings. Permission is not automatically granted.
Before or after applying for divorce, parties should therefore consider:
- whether their property matters have been formally resolved;
- whether there may be undisclosed assets;
- whether companies, trusts or overseas assets are involved;
- whether superannuation needs to be divided;
- whether a claim for spousal maintenance should be considered; and
- whether their Will, superannuation nominations and beneficiary arrangements should be updated.
When Does the Marriage Legally End?
When the Court approves a divorce at the hearing, the marriage does not ordinarily end on that same day.
In most cases, the divorce order becomes final one month and one day after it is made, unless the Court makes a special order providing otherwise.
The final divorce order can then be downloaded through the Commonwealth Courts Portal.
Until the divorce order becomes final, the parties remain legally married. They should not make arrangements to remarry before that date.
How Did the Case End?
Once our client understood the legal process, she stopped trying to persuade her spouse to agree to the divorce.
We assisted her in organising and reviewing:
- the parties’ marriage documents;
- the actual date of separation;
- their living arrangements after separation;
- communications between the parties;
- the other spouse’s last known address and contact details;
- records of attempts to locate and contact him;
- the documents and evidence required for service; and
- the current living arrangements for the parties’ children under 18.
The other spouse remained uncooperative and had not truly accepted that the marriage was over.
However, the question for the Court was not whether one person was willing to let go. The question was whether the legal requirements for divorce had been satisfied and whether the correct procedure had been followed.
The divorce application was ultimately completed in accordance with the law, and the marriage legally came to an end.
For our client, the most important outcome was not simply receiving a divorce order. It was finally understanding that:
Her future did not need to remain on hold while she waited for the other person’s permission.
A Marriage Can Be Ended, but the Wrong Procedure Can Cause Delay
Saying that a person can obtain a divorce without their spouse’s agreement does not mean that every case is simple or that every application will automatically be approved.
Common issues that cause delay include:
- incorrectly calculating the 12-month separation period;
- being unable to prove the true date of separation;
- failing to prepare evidence of separation under one roof;
- using a method of service that does not comply with the Court rules;
- failing to retain evidence of attempts to locate the other spouse;
- failing to allow sufficient time for overseas service;
- failing to adequately explain the arrangements for children under 18;
- inconsistencies in names, dates or marriage information contained in the application;
- mistakenly believing that divorce will automatically finalise property matters; and
- overlooking the time limit for commencing property or spousal maintenance proceedings after divorce.
The other spouse may be able to delay the process. However, they generally cannot permanently prevent a divorce simply by saying, “I do not agree.”
Final Thoughts
Some people refuse to agree to a divorce because they cannot accept that the relationship has ended.
Some deliberately delay the process as a way of continuing to control the other person.
Others treat their refusal to sign as a final bargaining tool, hoping to prevent their former spouse from moving forward with their life.
However, marriage is not a commercial contract that can only be terminated with the continuing consent of both parties.
Where a marriage has genuinely, continuously and irretrievably broken down, Australian family law does not ordinarily require one person to remain permanently trapped by the other person’s refusal.
A divorce may take time.
There may be difficulties with service.
Additional evidence may be required.
The matter may also involve children, property or international issues.
Nevertheless, provided the legal requirements are met and the correct procedures are followed, a sole divorce application can be completed lawfully.
There is no marriage that can never be ended.
What matters is confirming the legal requirements, preparing the evidence and following the correct process.
Disclaimer: This article provides general legal information only and does not constitute legal advice in relation to any individual circumstances. The case discussed has been anonymised, and certain non-essential facts have been summarised or modified. Every person’s circumstances concerning marriage, separation, service, children and property are different. You should obtain legal advice tailored to your particular circumstances before taking any action.
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Disclaimer
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