My Husband/Wife Doesn’t Want to get Divorced! What can I do?

What if your husband or wife doesn’t want to get divorced? A common misconception about divorce in Australia is that both parties must ‘agree’ to divorce. This is not the case. An application for divorce can either be made by both parties making a joint application for divorce, or, by one party making a sole application for divorce. It is important to remember that different obligations apply when making a sole or a joint application. The focus of this article will be on the process of making a sole application for divorce in Australia.

A sole application requires the person seeking the divorce (‘the applicant’) to prepare and sign a divorce application, then serve it, along with any other relevant documents, on their spouse (‘the respondent’).  The application can be prepared by the applicant themselves or by their lawyer. Once complete, the application will be filed online on the Commonwealth Courts Portal.

The divorce application can be served on the respondent in multiple ways, including:

• Service by hand. Note that the applicant cannot personally serve the application by hand on the respondent, they must arrange a third party over the age of 18 to conduct the service. This could be a family member or a professional process server.
• Service by post. This should only be done if the applicant is confident that the respondent will sign and return the acknowledgement of service.
• Service on the respondent’s lawyer.

To be eligible for divorce in Australia, the applicant or respondent must be an Australian citizen or, have been living in Australia for the last 12 months, with the intention to continue living in Australia. Evidence will usually be required on this point.

As Australia has a no-fault divorce system, the only ground that must be satisfied for a divorce to be granted is that the marriage has broken down irretrievably. Other requirements include that:

• At least one party regards the marriage to be over as at the date of separation and, that intention has been communicated in some way to the other party; and
• The parties must be separated for at least 12 months and 1 day prior to applying for a divorce. This includes if the parties have been separated while living under one roof.

Parties that have been married for less than two years must attend counselling before applying for divorce. A counsellor will complete a counselling certificate to confirm that the parties have discussed the possibility of reconciliation. That certificate must then be attached to the divorce application.

Once a sole application for divorce has been filed, the matter will be listed and a court date given to the parties. A court appearance will only be required if there are children of the marriage who are under the age of 18.

It is important to note that divorce applications are separate to any proceedings regarding children and property, children and property are dealt with separately to the divorce.

For more information about divorce, financial separation or parenting matters, you can visit the Federal Circuit and Family Court of Australia website or contact one of our experienced Family Law team on 8525 2700 or click here to request an appointment with one of our team.

Article written by Mia Doncevski
Photo by Priscilla Du Preez on Unsplash