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One-Sided Divorce In Australia: Is There Such a Thing? 

one sided divorce in australia | Justice Family Lawyers

While one person can initiate divorce proceedings, the process in Australia isn’t entirely “one-sided”. Here’s why:

  • Service: The respondent (the other spouse) must be officially served with the divorce papers and given a chance to be aware of the process.
  • No Requirement to Agree: Although the respondent has the opportunity to respond to the divorce application, they usually cannot prevent the divorce if the applicant is able to prove a 12-month separation and that the marriage has irretrievably broken down.
  • Children and Property: If children or property are involved, additional arrangements and potential hearings may be necessary. These matters necessitate negotiation or agreement between the couple, regardless of who initiates the divorce. Should an amicable settlement not be achievable, the court may need to make the final decision.

How Do I Apply for a Divorce if My Spouse is Unresponsive or Uncooperative?

Applying for a divorce in Australia when your spouse is unresponsive or uncooperative involves several steps to ensure the process adheres to legal requirements. Here’s a general guide on how to proceed:

  1. File a Divorce Application: You can start by filing a divorce application online through the Commonwealth Courts Portal. This process is generally straightforward if you have all the required information and documents prepared.
  2. Serve the Divorce Papers: .If you’re filing for a divorce by yourself (as a sole applicant), you are required to deliver the divorce papers to your spouse, officially informing them of the divorce proceedings. The process of serving divorce papers must adhere to the court’s specific rules to ensure your spouse is duly notified of the application. This task may prove difficult if your spouse is unresponsive or deliberately evading service.
  3. Affidavit of Service: After serving the divorce papers, you must provide the court with a document confirming that your spouse has been served with a copy of the divorce application. This affidavit must detail how, when, and where the documents were served.
  4. Application for Substituted Service or Dispensation of Service: If you cannot locate your spouse or if they are avoiding service, you may need to apply for a substituted service or a dispensation of service. A substituted service allows you to serve the papers differently, such as via email or to a family member who will pass them on. A dispensation of service is sought when you cannot serve the papers at all, asking the court to waive the requirement for service.
  5. Court Hearing: Depending on your circumstances, especially if there are children under 18 involved, you might need to attend a court hearing. The court will review your application, and if everything is in order, the divorce will proceed even if your spouse is unresponsive.
  6. Finalisation: If your divorce application is correctly prepared and filed, and it meets jurisdictional and service requirements, your divorce will be granted. In such cases, the divorce order will take effect one month and one day after the Divorce Hearing

Remember, the specifics of your situation might require tailored legal advice. Consulting with a divorce lawyer can help ensure you follow the proper procedures and that your rights are safeguarded throughout the divorce process.

Visiting the Federal Circuit and Family Court of Australia’s website is recommended for detailed information on the divorce process and requirements. They provide resources, application forms, and guidance on how to apply for a divorce, serve divorce papers, and proceed if your spouse is unresponsive or uncooperative.

Do Both Parties Have to Agree to a Divorce in Australia?

No, both parties do not have to agree to a divorce in Australia. Here’s why:

  • No-Fault System: Australia follows a no-fault divorce system. This means you don’t need to prove that either person was to blame for the marriage breakdown.
  • Irretrievable Breakdown: The only ground for divorce is to demonstrate to the court that the marriage has irretrievably broken down, and there is no reasonable chance of reconciliation. This is evidenced by the legal requirement to be separated for at least 12 months before submitting the divorce application. Separation is marked by the date on which both parties acknowledge that they were no longer together as a couple. While this typically involves living apart, it is possible to file for divorce even if you are separated but still living together in the same residence.
  • Sole vs. Joint Application: Joint applications necessitate the signatures of both parties to file the divorce application, often facilitating a smoother divorce process. However, one spouse can initiate divorce proceedings independently by filing a sole application.

While one spouse cannot directly prevent the divorce if the other spouse fulfills the necessary conditions, there are circumstances that could make the process more complex:

  • Children: If there are children under 18 involved, the court requires you to demonstrate satisfactory arrangements have been made for their care. A dispute over parenting arrangements can potentially complicate and delay the divorce process.
  • Property Settlement: Dividing assets and finances can become significantly more challenging if one spouse refuses to cooperate. You might need to pursue legal avenues to facilitate a fair property settlement.

In essence, although your spouse cannot stop the divorce from proceeding if you meet the legal criteria, their refusal to cooperate could complicate and prolong the corresponding settlement process, especially in matters related to child custody and the division of assets.

Also read: Married in Australia Divorce Overseas: Exploring the Possibilities and the Process

Facing a one-sided divorce in Australia and feeling overwhelmed?

Justice Family Lawyers is here to help you navigate through this challenging time. Our specialised team offers compassionate and expert legal advice to empower you to make informed decisions.

We understand the complexities of one-sided divorces and are committed to achieving your best possible outcome. Let us help you close this chapter with dignity and start anew.

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