A common question asked upon separation is “Do I have to sign Divorce papers?” or can your former spouse refuse to sign divorce paperwork and you won’t be able to get divorced.
The answer to this question is that under Australian law you will be able to obtain your divorce whether your former spouse wants to be co-operative or not.
What Is A Divorce?
Getting a divorce is the legal ending of the marriage.
It is also a term commonly used also to refer to the division of property upon married parties separating.
This is more properly called a “property settlement”.
A divorce does not set out or decide property division or care arrangements for children of the marriage.
When Can I Get A Divorce?
The Family Law Act sets out how to obtain a divorce in Australia.
Being separated for 12 months is a requirement. We have a great blog article on this subject that you can read here
Short periods of reconciliation, up to 3 months in total over 15 months, will be allowed provided the total actual separation period is 12 months.
Can My Spouse Object To Obtaining A Divorce?
In broad terms there are very few grounds to object to a divorce.
Not being separated for 12 months is the most common objection.
Another reason is that an Australian Court does not have jurisdiction to decide the divorce application.
An example of this could be that the parties are not Australian citizens and do not reside in Australia.
The rarest ground to objecting is that the original marriage was in fact not lawful or legally binding – for example that the ceremony did not comply with the laws of the country to validly constitute a marriage.
Does My Spouse Have To Sign The Divorce Application?
The divorce process allows for both a joint application, where both spouses sign the application prior to it being lodged with the Court, but it also allows for an individual application filed by one of the spouses, with the application then to be provided, or “served”, on the other party.
How Do I Serve The Divorce Application?
We have a great article on this, that you can read HERE
A divorce application can be served by posting the application to your former spouse with the intention that your former spouse will sign an acknowledgement of its receipt which can then be provided to the Court.
The other primary alternative if it is likely that your spouse will not sign the acknowledgement is that you arrange for personal service of the divorce application on your former spouse.
This is where a process server or third-party hands the divorce application to your former spouse and then provides an affidavit ,which is a sworn document, indicating that your former spouse has been give the application and knows the application is occurring.
The rules of the court also allowed for you to apply for service other than by post or in person.
You need to demonstrate to the court there is a good reason for this, such that your former spouse refuses to acknowledge receipt of the application, or that you don’t know the address where they live.
Alternatives that are commonly allowed include service by email, through a social media channel such as Facebook, sometimes by text or in more rare circumstances by giving the application to a third party who will likely bring it to their attention – this is called Substituted Service.
In rare cases after all efforts to locate your former spouse have failed the court will still grant the divorce – this is called Dispensing with Service.
In our experience provided all reasonable efforts have been made to arrange service the court will allow a divorce application to proceed.
What If My Former Spouse Turns Up At The Court Hearing Of My Application?
In our experience very few former spouses will attend the court hearing.
Even if your former spouse does attend and raises an objection, provided the court is satisfied that there is a valid marriage, that you have separated for more than 12 months and that your former spouse has been made aware of the divorce application then the court will allow the divorce application to proceed and be granted.
Some Final Thoughts
The ending of a marriage is not always amicable.
A former spouse may be difficult, uncooperative, or even aggressive or abusive.
In such circumstances the Court will take these factors into account and if required your confidentiality of address or contact details can be protected.
Also, if you are legally represented you will not usually need to attend the court hearing.
Therefore, you should not be held back from taking the step of ending your marriage if you wish to do so.
Hopefully we have been able to answer the very common question of Do I have To Sign Divorce Papers?
If you are ready to take the next step.
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