Can I Get Divorced Without My Ex Agreeing?

Divorce can be difficult enough without having an uncooperative former partner. One of the most common questions we hear is:

“What happens if my ex refuses to agree to the divorce?”

The short answer is yes, you can apply for a divorce without your ex agreeing.

In Australia, you do not need your spouse's permission to apply for a divorce. However, there are legal requirements you must satisfy before the Court will grant a divorce.

Australia Has a No-Fault Divorce System

Australia has a no-fault divorce system. This means the Court generally does not consider who was responsible for the breakdown of the marriage.

For the purposes of a divorce application, the key issue is whether the marriage has broken down irretrievably. Generally, this is established by demonstrating that you and your spouse have been separated for at least 12 months and one day, and that there is no reasonable likelihood that you will resume married life.

For further information about the requirements for divorce, the Federal Circuit and Family Court of Australia provides guidance on its divorce application process.

What if My Ex Refuses to Sign the Divorce Papers?

You may still apply for a divorce by making a sole application. A sole application means that you apply for the divorce on your own. Your former spouse does not need to sign or agree to the application.

However, you will generally be required to formally provide your spouse with the divorce documents. This process is known as service. You cannot simply obtain a divorce without your former spouse being given the opportunity to know about the application and respond to it.

If your spouse is in Australia, there are specific requirements and timeframes for serving the divorce documents. Different requirements may apply if your spouse is overseas or cannot be located.

The Court provides detailed information about serving divorce documents in a sole application.

Can My Ex Stop Me From Getting Divorced?

Your former spouse can respond to the divorce application and, in certain circumstances, oppose it. However, simply saying, “I don't want the divorce”, is not necessarily enough to prevent the divorce from being granted.

The Court will consider whether the legal requirements for divorce have been met.

For example, the Court may need to be satisfied that:

• you have been separated for the required period;

• the marriage has broken down irretrievably;

• there is no reasonable likelihood that you will resume married life; and

• the other requirements for a divorce application have been satisfied.

If the legal requirements are met, the fact that one spouse does not want the marriage to end does not necessarily prevent a divorce order from being made.

What if We Still Live in the Same House?

It is possible to be separated while continuing to live under the same roof.

This is sometimes necessary because of financial pressures, children, housing availability or other personal circumstances.

However, if you have lived together during part or all of the required separation period, you may need to provide additional evidence to the Court about the circumstances of your separation.

The Court will consider the particular circumstances of your relationship and whether you were genuinely separated despite continuing to live at the same address.

What if I Cannot Find My Ex?

Sometimes a former spouse cannot be located. This does not necessarily mean that you cannot proceed with a divorce application.

If you have taken reasonable steps to locate and serve your spouse but have been unsuccessful, you may be able to apply to the Court for an alternative method of service or, in exceptional circumstances, for the service requirement to be dispensed with.

These applications can be more complex, and it is important to obtain advice about the evidence required.

Does Getting Divorced Resolve Property and Parenting Issues?

No. This is an important distinction.

A divorce legally ends a marriage, but it does not automatically finalise:

• property settlements;

• financial arrangements;

• spousal maintenance; or

• parenting arrangements for children.

These issues may need to be dealt with separately.

It is therefore important not to assume that obtaining a divorce means that every financial and parenting issue arising from the separation has been resolved.

So, Can I Get Divorced Without My Ex Agreeing?

Yes, in many circumstances you can.

You can make a sole application for divorce without your former spouse signing or agreeing to the application.

However, you must still meet the legal requirements for divorce and comply with the Court's procedural requirements, including requirements relating to serving your former spouse.

Every situation is different, particularly where there has been separation under one roof, difficulties locating a former spouse, overseas service or disagreement about when the parties actually separated.

If you are considering applying for a divorce and are unsure about your circumstances, obtaining legal advice before filing your application can help you understand the process and identify any issues that may need to be addressed.

Need Advice About Divorce?

If you are considering applying for a divorce, or your former spouse is refusing to cooperate with the process, the team at Lawgix can assist you in understanding your rights and the steps involved.

We can provide advice about your particular circumstances, including serving your former spouse, and the requirements for making a sole divorce application.

Contact Lawgix today to discuss your circumstances and obtain legal advice about your options.