Getting a divorce can be quite a complicated and stressful experience. If both spouses agree to it and are getting an uncontested divorce, it makes the process simpler. However, that is not always the case. In many instances, one of the ex-partners may seek to contest the divorce either because they do not agree to the separation or the grounds for it. However, there are legal mechanisms in place to help you if that happens. Moreover, Australia allows no-fault divorces, meaning that the definite breakdown of the marriage takes precedence over the cause of it when granting the divorce. Hence, you should not have to deal with overwhelming trouble if your ex-partner is refusing to sign the papers and you are protected from any harm or intimidation from them.
Communication and Negotiation Strategies
It is in the welfare of both parties that the divorce happens with the consent of both. If one party is denying the need for divorce and you believe that this can cause delays or issues later, it is advisable to sit down and negotiate to avoid unnecessary hassle. You can go for family dispute resolution with an independent practitioner to convince your dissenting ex that a divorce is the most logical solution to the breakdown of the marriage. In fact, you can request mediation even after court proceedings have commenced.
Mediation is also recommended if children under the age of 18 from the marriage are in the picture. It helps you figure out the best way to make the separation less traumatic for them and ensure amicable co-parenting after the divorce. Mediation is also a great opportunity to discuss asset division and other financial matters. Prior resolution makes the transition smooth and less distressing.
However, even if such negotiations do not bear any fruit, you may move forward with a sole application for divorce and allow the court to judge the circumstances and decide whether the divorce should be granted or not.
Legal Requirements for Divorce Papers in Australia
As mentioned before, Australian law has provisions for no-fault divorce. The Family Law Act of 1975 lays out that a divorce may be granted “on the ground that the marriage has irreparably broken down.” Hence, the court will only ensure that certain conditions are met before granting the divorce. The two main requirements are:
Whether you are opting for a joint or sole application for divorce, these conditions must be met and the same proved with irrefutable evidence in court for the divorce to be granted.
Options Available if Your Spouse Refuses to Sign under Australian Law
When you file for a sole application for divorce, it is imperative to serve your ex-partner with the papers through the proper channel and process. If that is not ensured, the divorce finalisation may be delayed or even rejected, and you may have to start the entire process all over again. Your ex-spouse may file for a Response to Divorce if they do not agree to the papers that you served them. The two most common reasons for filing a Response to Divorce are:
If a Response to Divorce is lodged, the court will set a hearing date to obtain an explanation from your dissenting spouse as to why they believe the application should be dismissed. You should bring a divorce lawyer with you to this hearing to support your cause and refute any points raised by your ex that you do not agree with. If your ex does not attend the hearing, the divorce proceedings will still go ahead. However, if they cannot attend the hearing physically, they have the choice to opt for a telephone hearing. Even after the hearing, they may refuse to sign the papers. In either case, the court can still grant the divorce if it is satisfied that the two conditions for the divorce as laid down above are met.
However, you must prove that your ex was properly served the application papers through an affidavit. This must be filled out correctly and accurately or you may have to serve your ex again. In fact, the Application for Divorce might be postponed or even cancelled if you cannot prove that the papers were served in a proper manner. Moreover, this may also happen if the application contains inadequate or incorrect information fulfilling the requirements of the divorce (for example, if you cannot prove that you have been separated for more than 12 months).
Mediation and Alternative Dispute Resolution in Australian Family Law
Family dispute resolution is highly recommended if matters like asset division, child custody, etc. are involved. Having all such matters figured out makes the divorce proceedings smoother and less fraught with disputes. Moreover, if the two parties disagree to whether the divorce should move ahead or not, mediation is a great way to bring them on the same page, be it an agreement to divorce or a decision to maintain the marriage or relationship. If, during the divorce proceedings, there is an impasse or the court is unable to decide if the conditions for divorce are met, they may order alternative dispute resolution in the presence of an independent third party to resolve the issue and get a clearer picture regarding what the next steps should be.
Seeking Legal Counsel in Australia: Steps and Considerations
The steps to seeking a divorce in Australia comprise:
Step 1: Determine that All Criteria are Met
Before filing for a divorce application, you must ensure that you meet the two most important criteria for divorce – that you have been separated for over 12 months and that the marriage is irreparable. You should seek legal assistance to make sure that you have all the necessary documents to prove the same in court.
Step 2: Prepare the Application for Divorce
Next, you must file for the Application of Divorce. This may be a joint or sole application. You can obtain this application from the Federal Circuit and Family Court of Australia (online or offline). You must also provide proof of marriage, proof of Australian citizenship or residency, and proof of separation for more than 12 months.
In a joint application, this proof of separation should come from you and your ex in the form of an affidavit each, while for a sole application, you and a third party trusted to honestly contend to your separation status must provide the affidavit. You must pay the filing fee, but you may seek an exemption or reduction, granted that you can prove that you are eligible for the same.
Step 3: Serve the Divorce Application
In case of a sole application, the application must be served with relevant documents to your ex-partner. This may be done by hand or by post. However, if your ex is trying to hinder the divorce proceedings by avoiding the service, you should hire an official process server, provide them with a photo of your ex along with their registered address, phone number, and all other contact details, and then, file the proof of completed service with the court. The papers must be served at least 28 days prior to the date set for the hearing. Papers may also be served to any other person above the age of 18, other than the couple in question.
Step 4: Attend the Divorce Hearing
If you have made a joint application for an uncontested divorce or one of the parties has requested a variation or dispensation of the usual procedure for special reasons that have been granted, a hearing may be bypassed. However, in case of sole applications and contested divorces, a hearing is deemed necessary. Moreover, if you have children from the marriage under 18, you must attend the hearing to assure the court that proper arrangements have been made for the children that are in their best interests.
If the served person does not attend the hearing, the proceedings will still go ahead. However, in case it cannot be proved that your ex was properly served following all necessary procedures or that the application for divorce does not have sufficient information regarding whether it meets the necessary criteria for a divorce, the application may be postponed or even cancelled.
Step 5: Finalise the Divorce
Once the court has ensured that all necessary requirements are met, it will give the order for the divorce. Once finalised, it takes one month and one day for the divorce to come into effect. However, finalising a divorce order does not mean asset division or child custody arrangements are resolved. They constitute a different legal process that you must still attend to.
Court Intervention in Australian Jurisdiction: Processes and Considerations
In case of marriage breakdowns where abuse or domestic violence is involved, the court may issue an intervention order to prevent harm to the victim while the divorce proceedings are in progress. Moreover, any requirement for dispute resolution will also be bypassed.
Navigating Uncontested vs. Contested Divorce Scenarios in Australia
An uncontested divorce is the quickest and easiest to obtain. A joint application is made and even a divorce hearing may not be necessary if both parties agree to it and all conditions are fulfilled. However, in a contested divorce, if you are the one contesting it, we recommend that you attend the hearing without fail to present your explanation. Otherwise, the divorce would be finalised even in your absence.
Finalising the Divorce Without Spouse’s Signature in Australia: Possibilities
Even if the ex contesting the divorce refuses to sign the papers, the court has the right to grant the divorce if it concludes that the couple has been separated for over 12 months and the marriage is beyond reparable.
Get in Touch
Divorce puts you in a tough spot, whether you are applying for it or contesting it. Do not go through it alone; our family lawyers at Maatouks Law Group will guide you through it. Contact us and find out more about our services.