Can My Spouse Refuse To Obtain A Divorce?

A divorce exclusively refers to the ending of the marriage agreement and does not cover division of finances, property settlement, or children’s arrangements. refusing a divorce

How do I get a divorce?

The parties apply for a divorce by making an application to the Federal Circuit and Family Court of Australia. In order to make an application, the parties must meet a specific eligibility criteria:

     1.       Either you or your spouse must:

a.       regard Australia as your home and intend to live in Australia indefinitely;

b.       be an Australian citizen by birth, descent or a grant of Australian citizenship; or

c.       be an ordinarily live in Australia and have done so for 12 months before filing for divorce.

    2.       The marriage must be broken down, and there is no reasonable likelihood that you and your spouse will get back together; and

     3.       You have been separated for a continuous period of 12 months or more.

Making the Application for a Divorce

If you both agree to the divorce, the simplest way to apply is to make a joint application. One party will complete the application; both will sign and the documents can be filed. If one party does not agree to a divorce, but the above criteria have been met, do not worry because you can still obtain a divorce, making a sole application for a divorce. This means that you will complete the application, and then it must be served on your spouse.

Serving the Application for Divorce

If you make a sole application, you must serve the divorce documents on your spouse; this must be done by post or by hand. Service by post should only be done where you are sure that your spouse will sign the acknowledgement of service, which is attached to the divorce application.   You must not personally serve your spouse by hand. You must arrange for a person over 18 to serve to documents on your spouse. This could be a family member, friend, or professional process server.

What if you cannot serve your Application for Divorce

If your spouse cannot be located or is evading service, you should seek an additional order from the court to allow you to serve your spouse in another way or dispense the requirement to serve the documents. This can only be achieved once you have taken reasonable steps and attempted to serve your spouse by hand or by post. After the documents are served in another way or service is dispensed, the court will issue you a court hearing date for your divorce. At this court hearing date, the divorce will likely be granted. Your divorce will be effective one month and a day after the court hearing date. If you are having any trouble obtaining a divorce because your spouse is refusing, or you would prefer to make a sole application, we can assist you. At The Family Lawyer, our experienced divorce lawyers can work with you to resolve these issues and ensure that your divorce is made final. 


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Kehsee Ng

Family Lawyer

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