The end of a marriage is an emotional and trying time, however if one spouse is unwilling to agree to a divorce what happens? Emotionally this can make the process of divorce harder, however legally the process of divorce is still fairly straight forward.
In Australia, the only grounds for divorce are that the marriage has broken down irretrievably and there is no reasonable likelihood you will get back together.
Both parties aren’t obligated to sign the divorce application, if one spouse doesn’t want the divorce to proceed they have very limited grounds to oppose the divorce and it is likely the divorce will still take place.
Once your spouse has been served the divorce papers they can file a formal Response. This is a document that expresses when someone opposes the divorce and the legal reasons why the divorce Application should be dismissed. The Response is then served on you or your family lawyer.
If you make a sole application, you are known as the applicant and the other party is known as the respondent. With a sole application, there is a requirement that the application is served upon the other party (respondent), and that appropriate proof is provided to confirm that the application has been served.
Related Article: Applying For Divorce In Australia
Service is a requirement to allow the other party to be notified of the pending application for divorce involving them. It is not possible for you to personally serve the divorce papers on your spouse, instead someone 18 years or older will need to serve the divorce papers on your spouse. This can be a family member, friend or a professional process server.
Documents must be served on your spouse at least 28 days before the court hearing if they live in Australia. If they are overseas, the requirement is that documents are served at least 42 days before the hearing.
Documents can be served by post or by hand, and can be on your spouse personally or their lawyer, if their lawyer is willing to accept the documents.
If you’re serving your spouse by post, you’ll want to be confident they will actually sign and return the Acknowledgement of Service (Divorce) to you. If you are not confident that your spouse will comply, it is best to have them served by hand.
If your spouse refuses to take the documents from the server, the server can place them somewhere in the presence of your spouse, stating what they are, and this will fulfil service requirements.
It’s advised that you obtain legal advice to understand your rights and responsibilities before apply for a divorce or other application in relation to a divorce. A lawyer can help explain how the law applies to your specific case.
Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email [email protected]