In Australia, both parties do not have to agree to a divorce to be granted.
Australian law operates on a no-fault divorce system, meaning the only requirement for divorce is proving that the marriage has broken down irretrievably.
This is usually demonstrated by living separately and apart for at least 12 months with no likelihood of reconciliation.
Even if one party does not consent to the divorce, the other party can still file a sole application for divorce.
However, in the case of a sole application, the applicant must serve the divorce papers to the other party.
If this is done correctly and the 12-month separation period is proven, the divorce can proceed regardless of the other party’s agreement.
How to File a Sole Application for Divorce?
Our family lawyers can assist with the filing of a sole divorce application.
Filing a sole application for divorce in Australia involves the following steps:
Obtain the Application: The divorce application form is available online from the Federal Circuit Court website and can be completed online through the Commonwealth Courts Portal.
Complete the Application: Fill out the application with information about your marriage, separation, children (if any), and other relevant details. Ensure all sections are completed accurately.
Sign and Witness the Application: Once you’ve filled out all parts of the application, sign it in the presence of a qualified witness, such as a lawyer or Justice of the Peace.
File the Application: Apply online through the Commonwealth Courts Portal. You’ll need to pay a filing fee, though you might be eligible for a reduced fee in certain circumstances.
Make Copies: Make at least two copies of all your documents—one for yourself, one for your spouse, and the original for the court.
Serve the Application: As a sole applicant, you are responsible for serving a copy of the application to your spouse. This must be done by a third party over 18, not by you. After serving, the server must fill out an Affidavit of Service by Hand and obtain an Acknowledgment of Service.
Attend Court: You are required to attend the divorce hearing if filing a sole application and there are children under 18 years of age.
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Can The Other Party Contest the Sole Application for Divorce?
Yes, the other party can contest a sole application for divorce in Australia. However, they can only dispute the facts on which the claim is based, such as the date of separation, whether you’ve been separated for at least 12 months, and whether adequate arrangements have been made to care for those under 18.
To contest a divorce, the respondent (the person who didn’t apply) must fill out a Response to Divorce and file it with the court before the hearing date. They will also need to attend the court hearing.
Australia’s no-fault divorce system means the court doesn’t consider why the marriage ended. Suppose the court is satisfied that the marriage has broken down irretrievably, and there’s no reasonable likelihood of reconciliation. In that case, it will grant the divorce, even if it’s against the wishes of one party.
Also read: Can You Marry More Than One Person In Australia?
Joint vs Sole Divorce Application: Similarities and Differences
Do both parties have to agree to a divorce in Australia? What are the similarities and differences between joint and sole divorce applications?
In Australia, you can file two types of divorce applications: a joint application or a sole application. Here are some similarities and differences between the two:
Similarities
Grounds for Divorce
Do both parties have to agree to a divorce in Australia? What are the grounds to file for it? Both types of applications require that you and your spouse have been separated for at least 12 months with no likelihood of getting back together.
Form and Information
The divorce application form is the same for both, requiring similar information such as details about your marriage, separation, and children (if any).
Filing Fee
Both joint and sole applications require the payment of a filing fee, though you might be eligible for a fee reduction under certain circumstances.
Also read: What to Consider When Separating?
Differences:
Agreement
Do both parties have to agree to a divorce in Australia? A joint application means that both spouses agree to the divorce, while a sole application is filed by one spouse, irrespective of the other’s agreement.
Service of Documents
There is no need to serve documents in a joint application since both parties are involved in filing. The applicant must serve a copy of the divorce application to the other spouse for a sole application.
Attendance at the Hearing
For a joint application, neither party is required to attend the divorce hearing unless they wish to. For a sole application, the applicant must attend the hearing if there are children under 18.
Response to Divorce
With a sole application, the other spouse can file a Response to Divorce if they wish to dispute the application. This is not applicable in a joint application as both parties have already agreed to the divorce.
How Long Does a Divorce Take If One Party Doesn’t Agree
In Australia, a sole divorce can be approved as long as jurisdictional and procedural requirements are met.
The applicant must serve the divorce application on the respondent. If the respondent does not respond or contests the application, it can delay the process.
If the respondent contests the application, the court will schedule a hearing to resolve the issues, which can add several months to the process. It is essential for the applicant to follow all legal procedures and provide the necessary documentation to avoid further delays.
Need Legal Assistance for Divorce In Australia?
Walker Pender Group can provide clarity on all aspects of obtaining a divorce in Australia. Our experienced lawyers will guide you through the process, ensuring you understand your rights and responsibilities during this challenging time. Contact us today to receive the support and expertise you need to navigate your divorce with confidence.
