Divorcing a spouse who is currently serving time in prison may seem daunting, but it is entirely possible under Australian law. While the process can involve unique legal and logistical challenges, the Family Law Act 1975 (Cth) does not prevent a person from seeking divorce simply because their spouse is incarcerated.

Is It Legal to Divorce a Spouse Who Is in Jail?

Yes. Under Australian family law, you are legally entitled to file for divorce regardless of whether your spouse is incarcerated. The standard requirement is that there has been an irretrievable breakdown of the marriage, evidenced by 12 months of separation.

Incarceration does not exempt a person from being subject to or initiating divorce proceedings.

Grounds for Divorce: Does Incarceration Matter?

Australia operates under a no-fault divorce system, which means you do not need to prove that your spouse committed a wrongful act to file for divorce. It is sufficient to establish that the marriage has broken down irretrievably.

That said, incarceration may become relevant when dealing with parenting arrangements, property division, and spousal maintenance, as the court will assess what is fair and in the best interests of the child.

Serving Divorce Papers to an Incarcerated Spouse

A key procedural step in any divorce is the service of documents. When your spouse is in prison, this can become more complex, but it is still manageable.

Steps to Serve Divorce Documents:

  1. Confirm the Inmate’s Location: Identify which correctional facility your spouse is located in. In Australia, this can be done by contacting the relevant State or Territory’s Department of Corrections.
  2. Contact the Facility: Correctional centres often have strict protocols regarding legal services. You may be required to notify the prison administration and deliver documents through an authorised channel.
  3. Arrange Service: Documents must usually be served in person. A process server or sheriff’s officer can attend the prison and hand over the papers.
  4. Obtain a Proof of Service: The person who serves the documents must complete an Affidavit of Service, which is filed with the Court as evidence.

If your spouse refuses to sign or acknowledge the documents, or if they cannot be located, you may apply for substituted service or dispensation of service with the Federal Circuit and Family Court.

For help navigating complex family law processes, visit our Family Law Services page.

How Is the Divorce Process Different with an Incarcerated Spouse?

While the legal foundation remains the same, divorcing a spouse in prison often takes longer and may involve unique complications.

Key Differences:

Issue

Traditional Divorce

Divorce Involving Incarceration

Communication

Open communication between parties

Limited contact and delayed responses from the inmate

Court Attendance

Parties can appear in person

The inmate may need a video link or legal representation

Property Division

Both parties discuss and negotiate

May require court intervention due to inaccessibility

Parenting Arrangements

Both parents present

The custodial parent may have majority decision-making

Legal Representation

Equal access to lawyers

Inmates may face delays or have limited legal contact

Parenting and Child Custody Issues

If children are involved, the Court will prioritise the best interests of the child, as outlined in Section 60CC of the Family Law Act 1975. While an incarcerated parent retains legal rights, their capacity to parent is considered limited.

The Court may consider:

  • Length of the prison sentence
  • Nature of the offence
  • Impact on the child’s emotional and psychological well-being
  • The child’s current and future needs
  • Whether any form of supervised contact is appropriate

The parent caring for the child is often granted sole parental responsibility, but the incarcerated parent can still request contact rights, including phone or video calls.

Can a Prisoner File for Divorce?

Yes. An incarcerated individual has the legal right to initiate divorce proceedings in Australia. However, they may face obstacles such as:

  • Difficulty accessing legal advice
  • Delays in receiving documents
  • Inability to attend court without video link arrangements

Legal aid or duty lawyer services may assist if the incarcerated spouse cannot afford legal representation.

Financial and Property Settlement Considerations

The division of marital property remains the same regardless of incarceration. However, practical difficulties may arise if the incarcerated spouse is unable or unwilling to participate.

Courts have discretion to make property settlement orders in the absence of full cooperation, especially when the custodial spouse is unable to access shared financial resources or marital assets.

If superannuation, jointly owned property, or other shared assets are involved, it’s best to seek legal advice early to avoid future disputes.

Spousal Maintenance and Child Support

While it’s rare, an incarcerated person may still be required to pay child support or spousal maintenance if they receive income, pensions, or other benefits. Conversely, they may seek a variation to any existing support order based on hardship or inability to pay.

Final Thoughts: Legal Support for Complex Divorce Situations

Divorcing an incarcerated spouse in Australia is entirely possible, but it does require strategic planning, patience, and careful legal navigation. Whether you’re looking to initiate proceedings, serve documents, or address child custody and property issues, having the right legal team is essential.

At Maatouks Law Group, our experienced family lawyers in Sydney are here to support you every step of the way. We take a compassionate yet strategic approach to complex divorce cases, ensuring your rights are protected and the process moves forward as smoothly as possible.