Can You Apply for a Divorce Without Your Partner’s Input?
Completing a divorce application can be both stressful and complicated. When a marriage ends, there is often a lot to organize, negotiate and decide upon before the divorce proceedings can be ended. On top of this, the emotional impact of a divorce can be extremely taxing —even when both parties involved are on the same page. But what happens if one spouse doesn’t want a divorce? This situation can be particularly difficult to contend with, but there are legal ways to get around it. If your partner is refusing to agree to a divorce, you can lodge a sole application.
What Is a Sole Application?
When you apply for a divorce by yourself, you complete a sole application. This is as opposed to a joint application, which you would complete with your spouse. In the case of a sole application, you are the only person required to sign the divorce papers. You will still need to hand these papers over to your spouse, who is known as the respondent, but they do not need to sign for the divorce to be finalized. However, they will need to sign an Acknowledgement of Service form, and you will need to sign an Affidavit of Proof of Signature form to confirm that they have signed. The individual who served the divorce papers will also be required to sign an Affidavit of Service that outlines how and when the service was conducted. These protocols are necessary because while your spouse doesn’t need to agree to the divorce, they do need to be given the opportunity to respond.
Applying for a Divorce On Your Own: What You Need to Know
Applying for a divorce on your own can be intimidating, but the process is simpler than you might think. If you choose to seek assistance from a divorce lawyer, they can advise you on the process and help you every step of the way. If you decide to go ahead without legal assistance, you can find detailed step-by-step guides online that are helpful. However, you intend to do it, there are a few basic things to know that will help prepare you for the task.
As with any divorce application, you need to have been separated for 12 months before you can apply. The Family Law Act states that a marriage must be irretrievably broken down before it can be legally ended. You or your spouse will also need to be an Australian citizen or live in Australia and consider Australia as your permanent home. If you don’t fit into either of these criteria, you can still be eligible if you usually live in Australia and have done so for at least 12 months before the divorce application. It is additionally worth noting that if you have been married for less than 2 years, you will need to file a counseling certificate. These can only be obtained if you attend counseling sessions. If you cannot attend counseling sessions with your spouse, you will need to file an affidavit.
When you apply for the divorce, you’ll be required to provide a copy of your marriage certificate and submit a filing fee. This fee can be reduced if you show evidence of financial hardship or are receiving some type of government support. If your marriage certificate is not in English, you’ll need to file an English translation of it, along with an affidavit from the translator. Your sole divorce application will also need to include information regarding parenting arrangements, that is, if you have children under the age of 18. In this case, you will also have to attend the court hearing. If you don’t have children within this age bracket, you will not usually need to attend the hearing as a sole applicant.
How to Complete Your Divorce Application as a Sole Applicant
To apply for a divorce, you must complete the online Application for Divorce and pay the filing fee via the Commonwealth Courts Portal. This process involves the following steps:
- Check that you are eligible for a divorce.
- If you are not certain of your eligibility or need some help completing the application, obtain legal advice.
- Register for the Commonwealth Courts Portal and login.
- Select ‘Start a new file,’ read the eFiling obligations, and tick the box to confirm that you have understood and agreed to them.
- Select ‘Application for divorce’ from the drop-down box and click ‘Continue.’
- Select the appropriate court and click ‘Continue.’
- Add a title and description, select ‘Create’ then ‘OK.’
- Complete the online Application for Divorce.
- Complete Step 1 Part A-F, selecting ‘Save’ on each page.
- In Step 2, upload any required and additional documents.
- In Step 3, select ‘Lock and Continue’. You won’t be able to make any changes once you have locked the application, which will be deleted after 90 days if there is no activity.
- In Step 4, print the application.
- Sign the Affidavit for eFiling Application (Divorce) before a lawyer or a Justice of the Peace. Since you are lodging a sole application, only you will need to sign the affidavit.
- In Step 5, upload the signed Affidavit for eFiling Application (Divorce).
- At Step 6, download the brochure Marriage Families and Separation. Since both parties need to read this document, you must include a copy when you serve the documents to your spouse.
- In Step 7, submit the application and pay the filing fee.
- Select a court date.
As a sole applicant, you will then need to serve the divorce papers to your spouse (the respondent). Arrange to have them delivered to your spouse at least 28 days prior to the hearing. They can be served by post or hand delivered by anyone other than you. You can also serve the documents via your spouse’s lawyer if their lawyer has specified that they are willing to accept service. It is advisable to allow several months from the time you file for divorce to the actual date of divorce. If there are any issues with your application, it may take longer. At the hearing itself, the court will grant a divorce order, but the divorce will not become final until 1 month after the hearing. At this time, the court will issue a divorce certificate.
What Happens If Your Spouse Doesn’t Sign the Acknowledgement of Service?
If your spouse refuses to sign the Acknowledgement of Service, you’ll need to find a photo of them and give it to the person who served the papers. This is simply to ensure that they served the correct individual. If you are unable to find your spouse, you will have to provide evidence that you tried to locate them. This might involve making inquiries with friends, family, and their workplace, and placing notices in local newspapers. The divorce application asks for your spouse’s address for service, so you’ll have to write “unknown.” Once this is done, upload a further application seeking an order to dispense with service or for substituted service.
What Happens If Your Separation Was Ambiguous?
As previously mentioned, you are only eligible to divorce if you and your spouse have been separated for at least 12 months prior to lodging the application. However, there are many reasons why this period of separation might be difficult to define. For example, you might have gotten back together with your spouse for a brief time since your initial separation. The rule is you can get back together once for up to 3 months without restarting the 12-month separation period. This means that if you were separated for 4 months, got back together for just under 3 months, and then separated again for 8 months, you would still be eligible for divorce.
For several reasons, some couples will separate while continuing to live under the same roof. If you are in this situation, it is still possible for you to get a divorce. However, the court will need to consider your circumstances and decide whether your relationship can be confidently described as non-romantic. They will consider factors such as your sleeping arrangements, your sexual relationship, the way in which you share meals and domestic duties, and whether you share money and bank accounts. They will also enquire as to whether your friends and family think of you as separated. You will need to prepare supporting affidavits to prove that you and your spouse are separated.
How to Handle Property Settlement & Children’s Arrangements
Unfortunately, a divorce does not resolve issues relating to children or property. Division of property is a separate task that needs to be done within 12 months of the date of the divorce order. If you cannot resolve your property issues and need a court to make the final decision, you will need to file a separate application for your divorce. If this application cannot be filed within 12 months of the date of the divorce, you will need to ask the court for permission to apply.
If there are children of the marriage who are under the age of 18, you must outline the particulars of the arrangements in Part F of the divorce application. A child of the marriage includes any child of you and your spouse, regardless of whether they were born before, during or after your marriage. This includes any child adopted by you and your spouse, or any child who was treated as a member of your family prior to the separation. If you can’t agree on arrangements for the children, you can try using family dispute resolution. If this fails, you may need to go to court.
Don’t Be Afraid to Ask For Help
Completing a divorce application can be both emotionally and legally complicated. The difficulties associated with this process are even more significant when you’re filing a sole application. Doing it all on your own is tough, to say the least. So why not get some help? By seeking assistance from a divorce lawyer, you ensure that someone will be by your side for every step of the application process. This law professional can help you understand the legalities of your case and provide advice about your options. They can also help with negotiations and communication between yourself and your spouse. For legal expertise from experienced lawyers, connect with the team at Duffy & Simon.
